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A trust provision that says adopted children cannot become beneficiaries does not apply to children conceived in vitro using eggs from an anonymous donor and carried by a surrogate mother, a New York court has held. “Surrogacy is not the functional equivalent of adoption,” Manhattan Surrogate Eve M. Preminger wrote in Matter of John Doe, 3013-1980. “For example, in gestational surrogacies, as here — where the birth mother is implanted with a fertilized ovum genetically unrelated to her — the basic question of who should be considered the natural mother must be answered in light of the advanced technologies that permit such a procedure.” Case law on in vitro fertilizations remains sparse in New York, as the state does not recognize surrogacy contracts. Domestic Relations Law �122 forbids courts to enforce surrogate parenting contracts. Doe is apparently the first published New York case involving the rights of such children under a trust. “What’s interesting in this case is that the court determined that even though the mother is neither the genetic nor the gestational mother, [it] decided that for the purpose of the trust that these are the issue or descendants of the settlor,” said T. Barry Kingham, a member of Curtis, Mallet-Prevost, Colt & Mosle, and the trustees’ attorney. In holding that the clause did not preclude the children from benefitting from the trust, Preminger relied on a court’s judgment of parental relationship from California, where the children at issue were born, and the fact that both California and New York use the same test to decide disputes involving surrogate mothers. The settlor, or creator of the trust, was an attorney referred to in court papers as John Doe. In 1959, he created eight identical trusts, one for each of his eight children’s descendants. The trusts began making distributions to his grandchildren in 1979. For as long as any of his children did not have descendants, the income from those trusts was divided among the rest. The settlor required that “adoptions shall not be recognized,” according to the decision. As of December 2001, the date of the latest distribution from the trusts, five of Doe’s eight children had children. The income from the three other trusts — the amount is in sealed documents — was divided evenly among Doe’s 14 grandchildren. In January 2002, a surrogate mother hired by Doe’s daughter, called K. Doe, gave birth to fraternal twins. The twins were conceived in vitro, using the sperm of K.’s husband and eggs from an anonymous donor unrelated to either K. or the surrogate mother. After the twins’ birth, the trustees asked the court to determine whether the trusts’ exclusion of adoptees applied to the twins. In such construction proceedings, Preminger wrote, the settlor’s intent controls. But there was no evidence of Doe’s intention about such children in 1959 since the techniques involved had not been developed. “The reproductive technologies involved in this case — in vitro fertilization and gestational surrogacy — were established in the 1970s, well after these trusts were settled,” Preminger wrote. “It is unlikely that the settlor’s views of these methods of reproduction can be discovered. Even if the court were to consider the trusts ambiguous and allow extrinsic evidence on this question, the petitioning trustees candidly state that they know of none.” The determination, she held, must therefore be confined to the language of the trusts. NON-BLOOD RELATIONS Preminger dismissed the argument that the preclusion of adoptees should be applied to all non-blood relations. Because the trusts contained provisions that enabled the settlor’s children’s spouses to become beneficiaries, the judge inferred that he did not intend to include only genetic relatives. “This is the main language in the trusts that bears on this question, and nothing else suggests that the court should extend adoptions to include the reproductive technologies at issue in this case,” Preminger wrote. “When the settlor excluded ‘adoptions,’ it cannot be said that he intended to exclude all means of assisted reproduction; such means … were not then in existence, and no language in the trusts anticipates technologies relating to birth that may be adopted in the future.” The California judgment of parental relationship, which was obtained by the couple, established them as the children’s legal parents. “Under California law, a judgment of parental relationship is entirely distinct from an adoption proceeding, and the two are governed by different divisions of the California Family Code,” Preminger wrote. California, she noted, adopted an “intent” test for cases involving a contract under which a surrogate mother is implanted with a fertilized egg, in Johnson v. Calvert, 5 Cal. 4th 84. The test, as summarized in Doe, says that in such cases the people “who intended to be parents, absent other compelling circumstances, should be considered the parents.” New York courts have applied the intent test in other contexts involving in vitro children, Preminger noted. A husband, for example, sought sole custody of daughters who were conceived in vitro, in McDonald v. McDonald, 196 A.D. 2d 7. Utilizing the intent test, the Appellate Division, 2nd Department, ruled that his wife, who was the girls’ gestational mother, was their “natural mother” and entitled to temporary custody. Ultimately, Preminger found that “no reasoning justifies a denial of full faith and credit to the California judgment.” “It is clear that in California the twins were not adopted, and recognizing this result in New York is appropriate,” she wrote.

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