A Queens man may legally adopt his husband’s biological twins even though they were born to a woman under a surrogacy agreement that is illegal in New York state, a Family Court judge determined.
Judge Barbara Salinitro (See Profile) ruled that the best interests of the twins is the most important consideration in weighing the adoption petition of a man identified in court papers as “J.H.-W.,” not that the surrogacy agreement that reulted in their birth is “void and unenforceable” under New York law.
A home study provided to the court showed that the children are “thriving” in the care of J.H.-W. and his same-sex spouse, “M.H.-W.,” the judge said.
“The court is not being asked to enforce the surrogacy contract that forms the basis for the adoption, nor does the relief sought include claims relating to the surrogacy agreement itself,” Salinitro wrote in Matter of J.J., A-19-20/14. “Rather, the proposed adoptive parent…wants desperately to have equivalent legal status as the birth parent, which is what the couple had always envisioned as they proceeded on their bumpy road towards starting a family together, and is prepared to assume the rights and responsibilities that accompany legal parentage.”
To that end, the judge continued, the surrogacy agreement with the woman who bore the children in Mumbai, India, in 2013 is of “no consequence” to the adoption proceeding in Queens.
“The court finds where a surrogacy contract exists and an adoption has been filed to establish legal parentage, such surrogacy contract does not foreclose an adoption from proceeding,” Salinitro wrote.
The judge said she found a “paucity” of previous rulings in New York on surrogacy and none directly focused on surrogacy contracts in the adoption context. Accordingly, she called the issue before her an apparent question of first impression in New York courts.
Section 122 of Domestic Relations Law declares that “surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable.”
Salinitro noted that the law was adopted in New York in response to Matter of Baby M., 109 N.J. 396 (N.J. Sup. Ct. 1988), a New Jersey case in which a woman changed her mind about giving up the baby she had under a surrogacy agreement. The court voided the adoption of the child by the biological father’s wife and granted visitation rights to the biological mother.
Salinitro said New York has not amended its policy against surrogacy contracts since adopting Domestic Relations Law §122.
“In New York, it is well-settled that a party to a surrogacy contract may not seek a court’s assistance to enforce the agreement, nor will such contract be deemed viable for any other claims arising under its arrangement,” Salinitro wrote.
In general, the judge said New York’s attempts to have its laws and precedents keep pace with changes in society and biological science have been “admirable, but not absolute.”
A 1995 Court of Appeals’ ruling, Matter of Jacob, 86 NY2d 651, gave the unmarried partners of adults, whether they are heterosexual or homosexual, the power to legally adopt their partners’ biological children, the judge noted. Homosexual couples, including M.H.-W. and J.H.-W., were granted the right to marry in New York in 2011.
The judge said it is particularly “troublesome” to same-sex couples who now have the legal right to marry that their spouses might not have the right to adopt a spouse’s biological child because of the state law’s stance that a surrogacy agreement is an “illegal contract.”
Counterbalancing the public policy statement in §122 against surrogacy contracts, Salinitro wrote, is the pervasive presence in the law and court precedents of the idea that the best interest of the child is the “prevalent theme” of decision-making involving custody, visitation and adoptions, the judge said.
“There is a strong argument that despite the underpinning surrogacy arrangement, the best interest of the child under the totality of the circumstances should prevail,” Salinitro wrote.
The two children were born on May 12, 2013, in Mumbai. They were conceived through in-vitro fertilization using M.H.-W.’s sperm and an anonymous donor’s egg and implanted in the gestational surrogate, according to the ruling.
Granted U.S. citizenship because they were born to an American parent, the twins were allowed to leave India on May 28, 2013, as provided for in the surrogacy arrangement with the birth mother. They have been living in Astoria with M.H.-W. and J.H.-W. since.
Clifford Greenberg, a Manhattan attorney representing M.H.-W. and J.H.-W., said Salinitro’s decision will allow the formal adoption by J.H.-W. to move forward. He said Salinitro would likely be able to approve the adoption in May or June.
Greenberg said it is time for the Legislature to repeal §122 of the Domestic Relations Law. The family law specialist said the law was adopted in a “different time and era” as issues were first emerging in the wake of the Baby M. case about the then-new medical technology of in-vitro fertilization.
“I am thrilled to death [with the ruling] and I hope that Albany joins in my being thrilled and sees the light,” Greenberg said in an interview. “The whole point to all of this is what’s in the best interests of the kids. That is the matra. That is the everything in foster care and adoption.”
@|Joel Stashenko can be contacted at firstname.lastname@example.org.