A Legislative Approach to the Concept of Parentage in the Age of Surrogacy and Artificial Reproduction

In March, this column addressed the “Continuing Legal Evolution of the Concepts of Parent and Child,” N.Y.L.J. (March 8, 2018) in a review of the Appellate Division, Third Department’s decision of Jan. 25, 2018 in Matter of Christopher YY v. Jessica ZZ, 2018 NY Slip Op 0049, where the sperm donor, biological father sought access to the child of a feminine same sex couple and the court employed both the presumption of legitimacy of a child born to married partners and the doctrine of equitable estoppel to enforce the donor’s promise to relinquish his rights to the child. The difficult questions resolved by that decision were soon followed by Matter of David S. v. Samantha G., N.Y.L.J. (May 3, 2018) where Family Court Judge Carol Goldstein was presented with a custody dispute surrounding a “tri-parent arrangement” involving a biological mother and the biological father joined by his husband. Judge Goldstein ruled that the biological father’s husband had standing to seek custody and visitation, relying on the principles established by the New York Court of Appeals in Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016) with respect to the rights of a non-biological, non-adoptive same sex partner also seeking to establish rights of custody and visitation. Some of the other consistent precedents in this line of cases include Dawn M. v. Michael M., 55 Misc.3d 865 (Sup. Ct. Suffolk Co. 2017), RPF v. FG, 55 Misc.3d 642 (Fam. Ct. Orange Co. 2017), and Joseph O. v. Danielle B., 158 A.D.3d 767 (2d Dept. 2018).

Seeking to bring clarity to the perplexing questions concerning the determination of parentage in the modern, diverse and non-traditional family by divorce and family courts, New York State Assembly Member Amy Paulin has introduced the Child-Parent Security Act (A69559A). According to the Memorandum supporting this legislation, the purpose of the bill is “To legally establish a child’s relationship to his or her parents where the child was conceived through third party reproduction including those children born through gestational surrogacy arrangements.” One impetus for this proposal, as stated at the end of the Justification section of the Memorandum, includes the fact that our appellate courts have urged the Legislature time and again to provide answers to the question of “who is a parent,” including a recognition of the importance of making this determination at the present time in our history because “increasing numbers of children are being conceived and born through third party reproduction.”