Second-Parent Adoption Following Surrogacy

I’ve written before about why a non-biological parent in married same-sex couples should complete second adoption, even if both parents are on named on the child’s birth certificate. Most families have no trouble getting a court to grant the adoption, but parents who build their families through surrogacy face an interesting problem. New York is one of the few states that has an absolute ban on compensated surrogacy. So the question is, will New York courts grant a second-parent adoption for families built in a means that is illegal in this state?

Happily, the answer is yes – and for the first time a Family Court judge in Queens County wrote an opinion setting for the reasons why. (Family Courts in other boroughs routinely granted second-parent adoptions for similar families, but had never explained the reasons why.)

In the Matter of J.J., 2014 N.Y. Slip Op 24089, the proposed adoption in this case was for a set of twins who were conceived through in-vitro fertilization with the biological parent’s sperm, the egg of an anonymous donor, and a gestational surrogate in India. After the twins were born, the surrogate surrendered custody to the intended parents and the children had lived with the biological father and his husband (the proposed adoptive parent) ever since.

The judge summarized the problem as follows:

[I]t is troublesome that when using a surrogate, a birth parent who provides his or her genetic material is a legal parent to the child, yet their partner may not be able to achieve legal parentage through adoption, even though both planned on raising that child together in a family setting. Worse yet, in cases where neither partner has furnished their genetic material for a baby carried by a surrogate, neither parent could be deemed the legal parent of a child through adoption. Although such scenarios are consistent with statutes dictating that no person may give or accept any type of compensation in exchange for placement of a child for the purpose of adoption, such results are inconsistent with the Legislature’s intent that “each adoption should be judged upon the best interests of the child based upon a totality of the circumstances.”

Ultimately, the judge determined that the best interests of the children should prevail. Since the twins had been living with the two fathers from the time of their birth and because both fathers showed a commitment to providing the children with a loving and happy family environment, the judge decided that the best interests of the twins favored establishing legal parentage for the non-biological father. The opinion was issued in April, and, after additional proceedings, the adoption was finalized in July!

My thanks to Spencer McDuff, who contributed to this post.