Caroline Krauss-Browne and Margaret Canby
We have entered a new age in which medical technology and expansive adoption rules have broadened the avenues in New York to becoming a parent beyond the traditional two: the biological “old fashioned” way by two opposite-sex parties who are married to each other or not, and the cumbersome, expensive, and deliberate adoption process by two opposite-sex married persons. In what is certainly a surprise to many people, listing a person’s name on a birth certificate as a parent does not, in and of itself, confer parental status. Problems and inconsistencies arise, especially when applying the existing rules, developed over years by fits and starts, to the new factual and legal landscape related to same-sex couples and their families.
When a child is born to a heterosexual couple as a result of sexual relations, if the heterosexual couple is married, the presumption of legitimacy applies to such child, and no further legal action needs to be taken for both parties to be presumed to have a biological relationship to the child and have equal parental status. If the adults are not married, a paternity case can be filed to establish that the male is the biological father of the child in question and parental rights and obligations, whether voluntarily assumed or not, ensue. Interesting wrinkles and variations upon this rule will be addressed in detail in a future post.
As ART evolved, providing couples the opportunity to have children when one or both of them suffer a biological impediment to doing so the “old fashioned” way, the assumptions about biological parentage conferred by marriage became more complicated. These complexities grew as we entered the age of recognizing the equal rights of same-sex couples to marry and raise families.
In some ways, the New York laws and the cases that interpret them that recognized legal parental status in a changing factual landscape, have been progressive in conferring a status with many rights and obligations and, in other ways, New York has lagged behind the changing times.
For example, New York’s adoption rules now allow for single individuals to adopt, for non-married couples to adopt (both opposite-sex and same-sex), for people who are not in a romantic relationship or shared household to adopt, and for a second person to adopt the biological or previously adopted child of the first person. When the adults seeking to establish a parenting relationship are aligned in their mutual interest to undertake the parenting relationship together, the courts have been liberal in granting the formation of that status, reflecting the public policy that creating more opportunities for legal parent-child relationships to form rather than less generates significantly better outcomes for children.
New York statutes specifically addressing the issue of ART in the conception of a child recognize that it is unfair to children conceived by ART within a marriage to require that the non-biological parent surmount extra legal hurdles for parental status to be created, such as requiring a second parent adoption before the obviously non-biological parent can assert parental status or have such status imposed upon him. The rule now provides for a document to be executed at the initiation of ART procedures, which provides that children born by ART into marriages are the legitimate “birth child” of the “husband” and “wife” for all purposes. But what happens when you have a situation with two “wives” or two “husbands”?
This rule was upheld by a Kings County (Brooklyn) Surrogates Court when a same-sex couple sought a second parent adoption for a child born to one of them during their marriage. The court found a second adoption unnecessary given New York’s new marriage equality statute, because the presumption of legitimacy applied despite the fact that the statutory language refers to the child as the “legitimate child of both birth parents.” But the presumption of legitimacy has not been consistently applied to same-sex couples. For example, inexplicably and without a full recitation of the relevant facts, a New York appellate court recently held that the presumption of legitimacy did not apply to a same-sex couple for a child born during the marriage, stating that the presumption of legitimacy is only a rebuttable biological presumption of parenthood in the parent who did not give birth—which cannot be the case in a same-sex relationship—and not a legal presumption of parenthood. In seemingly cutting out all same-sex marriages from the presumption of legitimacy that has always attached to children born into marriages, this ruling begs the question of whether or not the old concern about the stigma of “illegitimacy” has been held to be less traumatic for a child, by at least some courts, than the “stigma” of having same-sex parents.
So what happens when the ART form isn’t properly signed or is somehow overlooked? What if the use of donor genetic material to conceive is informal (via at home artificial insemination) or, as in the case of same sex-couples, a direct biological relationship to both parents, even when married, cannot (it seems) ever be assumed? What if the couple, heterosexual or otherwise, is not married? Can a different standard be applied to opposite-sex parties than to same-sex parties? Can such a different standard possibly pass constitutional muster? Stay tuned as these questions, which are at the very forefront of the emerging law on de facto parenting presently being litigated in New York’s top court, will be discussed in our next chapter.