In a case of apparent first impression in New York, a Long Island magistrate has upheld a California judgment of paternity for twins conceived pursuant to the terms of a gestational surrogacy contract.
Family Court Support Magistrate Rachel J. Parisi in Suffolk County ruled that the U.S. Constitution’s full faith and credit clause trumps New York’s public policy barring surrogacy contracts—i.e., contracts in which a woman agrees to become pregnant and deliver a child for others.
“Both federal and state law hold that a state’s policy is not a valid basis to determine that another state’s properly adjudicated judgment should not be afforded full faith and credit,” Magistrate Parisi wrote in D.P. v. T.R., F-04079-10. “The [U.S.] Supreme Court has held…that there is ‘no roving “public policy exception” to full faith and credit due judgments.’”
The present child-support proceeding was initiated earlier this year by D.P., a Suffolk County public employee, against his former romantic partner, T.R., a local business owner.
T.R. opposed the motion on several grounds, including subject matter jurisdiction.
In support of his petition, D.P. sought a ruling that a judgment of paternity issued by the Superior Court of California in 2001 is enforceable in New York. The 2001 order established both D.P. and T.R. as the fathers of twins born to a surrogate mother in August 2001.
D.P. is the twins’ biological father. T.R. was his romantic partner.
Both men are New York residents. Because New York law does not recognize surrogacy contracts, they entered into a surrogacy agreement with a woman in California, one of approximately 38 states to legally recognize such contracts.
Surrogacy contracts were barred in New York in 1992 by state legislators, some of whom decried the process as “baby selling.”
Many New Yorkers now go out of state to set up legally enforceable surrogate agreements—Sara Jessica Parker and Matthew Broderick famously hired a Ohio surrogate in 2008.
In upholding the California order, Magistrate Parisi cited a 2005 Manhattan Surrogate Court decision in a will-construction case, In re Doe, 7 Misc3d 352, for the proposition that the issue is not the validity of the underlying surrogacy contract, but rather the court’s subsequent judgment regarding paternity.
“[F]ull faith and credit cannot be denied to the California judgment on grounds of some countervailing New York public policy,” the support magistrate wrote, quoting Doe.
Petitioner D.P. was represented by Steven J. Weissman and Ronnie L. Silverberg of Brady Klein Weissman as well as Debra L. Rubin and Gayle Rosenblum of Rubin & Rosenblum in Long Island.
Mr. Weisman called the decision significant for the increasing number of New Yorkers who rely on California’s surrogacy law.
“There are quite a number of gay men in particular who have used the California procedure to establish the parentage of both members of the couple, because California is one of the few states where you can get a pre-birth judgment, so that both men’s names appear on the birth certificate,” Mr. Weisman said. “This decision gives a good deal of surety, especially to the non-biological father, that his parentage cannot later be challenged because of New York’s public policy against surrogacy.”
David S. Dikman of Dikman & Dikman in Long Island represented the respondent, T.R. Mr. Dikman declined to comment.
The support proceeding is now underway before Magistrate Parisi.
@|Mark Fass can be reached at firstname.lastname@example.org.