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Same-Sex Partner Who Is Child's Genetic Mother Granted Adoption
New York Law Journal
April 13, 2009
A Manhattan surrogate judge has granted an adoption petition filed on behalf of a woman whose donated egg was fertilized and then implanted in her same-sex partner.
Although the couple's Dutch marriage is recognized by New York and the donor's genetic relationship to the 15-month-old boy is "unquestioned," the donor filed for adoption in order to safeguard her parental rights under federal law and in the states that do not recognize the same-sex marriage.
The issue, Surrogate Kristin Booth Glen wrote in Matter of Sebastian (pdf), 38-08, is whether adoption is appropriate and permissible when the petitioner was not only legally married to the child's mother at conception and birth, but in fact is the child's genetic mother.
The Surrogate Court's decision will be published Wednesday.
"[N]o reported decision, in this or other states, has discussed or determined the parentage of a child's gestational and genetic mothers in a proceeding which involves no dispute between the parties," she wrote.
The surrogate concluded that adoption may not be a perfect solution, but it is the best one.
"Sebastian's genetic mother has other potential legal avenues: first, to be listed on Sebastian's birth certificate; second ... to execute a statutorily prescribed acknowledgment of paternity [filiation]; and third, to obtain a judicial order of filiation," Glen wrote.
However, she added, the Surrogate Court lacks the jurisdiction to grant any of those three options, and only the filiation order would likely be subject to "full faith and credit."
Therefore, the surrogate concluded, the donor's "petition to adopt Sebastian is ... granted, and, as a matter of law, in addition to her own genetic and loving connection, she is accorded all the rights and responsibilities appurtenant to the relationship of parent to her son."
Carol Buell of Weiss Buell & Bell, who represented the petitioner, called the decision an important step in guaranteeing legal rights for same-sex parents, as well as a reminder of the obstacles such parents continue to face.
"We've had such good news lately, in birth certificate issues and marriage issues, that a lot of my clients think they don't need to worry any more, that they don't need to take these steps to formalize their families," Buell said. "But that's just not the case, particularly regarding the portability issues she addresses in this case."
Adoption by same-sex "second parents" is available by statute or appellate court decisions in eight other states and the District of Columbia, none of which have considered the issue in the context of an egg donor petitioning to adopt her own genetic child.
The couple in the present case, Ingrid A., a Dutch citizen who works for the United Nations, and Mona A., an international-law attorney, were married in the Netherlands in 2004, three years after the country became the first in the world to recognize same-sex marriage.
In 2007, Mona donated her ova, which were fertilized in vitro by an anonymous donor and implanted in Ingrid.
On Jan. 27, 2008, Ingrid gave birth to Sebastian.
Later that year, Mona petitioned for adoption.
"[T]he parties argue that only an order of adoption would ensure the portability of Sebastian's parentage, and further ensure that the federal government and other states would recognize Mona as Sebastian's legal parent," Glen wrote.
In a 24-page, 53-footnote decision handed down yesterday, the surrogate deemed adoption the best manner for securing the "portability" of Mona's legal rights.
After finding jurisdictional and other shortcomings with alternative solutions, such as amending Sebastian's birth certificate to include both parents or issuing an order of filiation recognizing Mona as Sebastian's mother, Glen concluded that adoption afforded the strongest protections under New York law.
"Although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the entire United States," the surrogate wrote.
Buell said she was "thrilled" with the decision, though "very sad" regarding the lengths same-sex couples must go to formalize their families.
"Perhaps this case will help everyone else to see what else has to be done before our families are fully protected," Buell said.
