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In re Sebastian

Surrogate Court, New York County


April 9, 2009

IN THE MATTER OF THE ADOPTION OF A CHILD WHOSE FIRST NAME IS SEBASTIAN.

The opinion of the court was delivered by: Kristin Booth Glen, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

This case presents important questions about the ways in which a child's "parents" are defined and legally constituted, and how the parent/child relationship can be protected in a transient, cross-border society. Answers implicate assisted reproductive technologies (ARTs) and an out-dated statutory scheme which fails to anticipate the relations created by those technologies, New York's evolving jurisprudence of same sex relationships, equal protection, full faith and credit, and the effects of the federal Defense of Marriage Act ("DOMA") (Pub L No 104-199, 110 US Stat 2419 [1996], codified at 1 USC § 7 [2000] and 28 USCS § 1738C [2000]). This court concludes that although petitioner already has a legally protected parental relationship with Sebastian and, even in the absence of that legal relationship, could utilize several less intrusive, expensive and time-consuming methods of establishing one, the only remedy available here that will accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law ("DRL") § 111 et seq.

FACTS

In-grid A. is a Dutch citizen who works at the United Nations. Mona A. is of Somali/Yemeni heritage, had an international upbringing and practices international law at a New York firm. In-grid and Mona have been in a committed relationship for more than eleven years, and on December 24, 2004 they were legally married in the Netherlands.*fn1 Desirous of establishing a family, and one which would reflect their ethnic and racial diversity, Mona donated her ova which were fertilized in vitro*fn2 by an anonymous sperm donor chosen for his similarities to In-grid's Dutch Italian ethnicity. The fertilized ovum was successfully implanted in In-grid's uterus, and on January 27, 2008 she gave birth to Sebastian, with Mona at her side. A birth certificate was issued by New York City's Department of Health and Mental Hygiene naming In-grid alone as Sebastian's parent. Since then In-grid and Mona continue to live together and co-parent Sebastian, who they consider to be the child of each of them. Notwithstanding their marriage and Mona's unquestioned genetic relationship to Sebastian, Mona here seeks to adopt the child.

BACKGROUND

I. THE LAW OF PARENTAGE

At common law, parentage*fn3 derived from two events, a child's birth to its "mother," and the mother's marriage to a man. Children born out-of-wedlock had only one legal parent, their birth mother. Recognizing the many advantages that flowed to children from having two parents, legislatures enacted filiation or paternity proceedings to confer legal parentage on non-marital biological/genetic fathers (see e.g. Hough v. Light, 275 AD 299 [1st Dept 1949]), a status which carries support and other obligations (Family Court Act ["FCA"] § 513). Similarly, adoption statutes established legal parentage for married couples who were biological/genetic strangers to a child (DRL § 110). Adoption also permitted an unrelated person, married to a child's mother or father subsequent to the child's birth, to attain "parental" rights, rather than functioning only as a step-parent. Over time, by legislative action and/or judicial construction, adoption became available to unmarried same-sex couples (Matter of Jacob, 86 NY2d 651 [1995]). The legislative purpose behind all these expansions of parentage has consistently been the best interests of the child, both economic (see e.g. L. Pamela P. v Frank S., 59 NY2d 1 [1983]) and psychological (e.g. Matter of Jacob, 86 NY2d 651 at 658-659).

At the same time that statutorily created and defined parentage expanded, so also did ARTs unknown to the common law and unanticipated by legislatures that created adoption and filiation statutes (see e.g. Bender's Child Custody and Visitation, § 11 A.03, Ami Jaeger, Parentage Issues in ARTS). A child now may be the product of an ovum from one woman (the genetic mother) fertilized by the sperm of a man (the genetic father) who is or is not married to the woman who actually bears the child (the gestational mother). Where the gestational mother, who may also be the genetic mother, is married, her husband is deemed to be the child's father whether or not he is the genetic father (see e.g. John Lawrence Hill, What Does It Mean to be a "Parent"? The Claims of Biology as the Basis for Parental Rights, 66 NYU L Rev 353, 372-373 [1991]).*fn4

These physiological possibilities, combined with the inadequacy of pre-existing legal frameworks, have generated a vast and confusing landscape involving controversies over "surrogacy,"*fn5 "ownership" rights to frozen embryos (Kass v Kass, 91 NY2d 554 [1998]), fertility clinic errors (Perry-Rogers v Fasano, 276 AD2d 67 [lst Dept 2000]), and custody and visitation disputes between genetic and gestational mothers(e.g. K.M. v E. G., 37 Cal 4th 130[2005], supra (previously cohabiting domestic partners); Johnson v Calvert,*fn6 5 Cal 4th 84, 851 P2d 776 [1993], cert denied 510 US 874 [1993]) (wife whose ovum was fertilized in vitro by her husband's sperm then implanted in surrogate/gestational mother).

At present there is no clear law in New York determining the relationship between a child and various women who may lay claim to parentage through genetic or gestational relationship.*fn7

And, of special significance, no reported decision, in this or other states, has discussed or determined the parentage of a child's gestational and genetic mothers in a proceeding which involves no dispute between the parties.

II. ADOPTION

Adoption has been generally described as follows:

Adoptive families are the product of law, not blood. Through a highly regulated process culminating in a judicial proceeding, the state creates the status of parent and child "in all respects" between individuals who are not biogenetically related and severs the child's relationship to the biogenetic parents and their families. Once an adoption decree has been issued, the adoptive family replaces and becomes the legal equivalent of the biogenetic family. The adoptee receives a new birth certificate with the names of her adoptive parents substituted for the names of the woman and man, if any, listed as her parents at birth.

(Naomi Cahn and Joan Heifetz Hollinger, Families by Law: An Adoption Reader, at 1 [New York University Press 2004]).

In New York, adoption creates a legal parent/child relationship where none previously existed.*fn8 Because the adoption statute is in derogation of the common law, it is to be strictly construed (Matter of Robert Paul P., 63 NY2d 233 [1984]). Although the statute has been judicially extended to permit adoption by unmarried couples*fn9 including same-sex couples (Matter of Jacob,86 NY2d 651), its purpose and effect is to create a new legal relationship where one did not previously exist. Adoption is not utilized for, nor, with one exception,*fn10 is it available to reaffirm, an already existing parent/child relationship (see Adoption Petition of C.C., No. A 19833, Slip Op [Cal Super Ct, Sept. 12, 1997] cited in Ryiah Lilith, The G.I.F.T. of Two Biological and Legal Mothers, 9 Am UJ Gender Soc Pol'y & L 207, 216 [2001]).*fn11

The question, then, is whether adoption is appropriate and/or permitted where, as here, the party petitioning for adoption was legally married to the child's mother at the time of the child's conception and birth, and where she is also the child's genetic mother.

DISCUSSION

I. MARRIAGE AS BASIS FOR PARENTAGE

A. New York's Recognition of Foreign Marriage

In-grid and Mona were legally married in the Netherlands, and under general marriage - recognition rules,*fn12 that marriage is recognized in New York (Martinez v County of Monroe, 50AD3d 189 [4th Dept 2008], appeal dismissed 10 NY3d 856 [2008]; C.M. v C.C., 867 NYS2d 884, 2008 NY Slip Op 28398 [Sup Ct, NY County 2008]) (recognizing out of state marriage for the purpose of divorce action). In addition to judicial recognition, New York's executive branch has acted to extend full protection to same-sex couples validly married in other jurisdictions (see Memo from David Nocenti, Counsel to the Governor, Re: Martinez Decision on Same-Sex Marriages,May 14, 2008) (noting that "extension of . . . recognition [found in Martinez] is consistent with State policy" and directing state agencies to conform their policies and regulations).*fn13 Thus, as the child of a married couple, Sebastian already has a recognized and protected child/parent relationship with both In-grid and Mona, arguably making adoption unnecessary and impermissibly duplicative.

Unfortunately, while this is the case in New York, the same recognition and protection of Mona's parental rights does not currently exist in the rest of this country, or in most other nations in the world. For this reason, the parties argue that only an order of adoption would ensure the portability of Sebastian's parentage, and further ensure that the federal government*fn14 and other states would recognize Mona as Sebastian's legal parent.*fn15

B. Exception to the Presumption, DOMA, and Full Faith and Credit

Even under traditional choice of law analysis, a marriage validly contracted in another state need not be accorded recognition if that marriage runs afoul of the forum state's public policy (see Martinez, 50 AD3d at 192; Restatement [Second] of Conflict of Laws: Validity of Marriage § 283).

Currently there are explicit prohibitions against same-sex marriages in forty-four states;*fn16 twenty-nine of those states have passed constitutional amendments restricting marriage to one man and one woman,*fn17 while fifteen states prohibit same-sex marriage by statute.*fn18 Without a change in these laws,*fn19 or an unlikely expansion of the Full Faith and Credit Clause*fn20 jurisprudence (US Constitution, article IV § 1; see Developments in the Law : III. Constitutional Constraints on Interstate Same-Sex Marriage Recognition, 116 Harv L Rev 2028, 2051 [2003]*fn21 ["Developments in the Law"]), these clear legislative statements of public policy would appear to permit courts of those states to deny recognition of same-sex marriages contracted elsewhere, and, arguably, also to legal rights flowing from those marriages, including presumptive parenthood.

Such a position is supported by DOMA, a 1996 Congressional enactment that not only defines marriage as solely a relationship between a man and a woman,*fn22 but also appears to allow the states to deny recognition of same-sex marriages validly contracted elsewhere.*fn23 To date, there is little case law on the validity or effect of the state DOMAs, or the constitutionality of the federal DOMA.*fn24

A holding by this court that Mona is already a legal parent by virtue of a foreign marriage recognized in this state may therefore offer insufficient protection in other states (see Finstuen v Crutcher, 496 F3d 1139, 1153-1154 [10th Cir 2007]) (holding that although a court is required to recognize the valid judgments of another state courts, it is not bound by another state's court's statutory interpretations), just as DOMA itself precludes federal benefits based on marital status to same sex couples. Thus, unless there is some other basis, grounded on genetic connection, upon which Mona's parentage of Sebastian can be legally established, adoption is the sole means by which their parent/child relationship and the "rights and obligations incident thereto" can be fully protected.

II. AMENDED BIRTH CERTIFICATE AS BASIS FOR PARENTAGE

An important consequence of adoption is the issuance of a new birth certificate, substituting the adoptive parent[s] for the birth mother and, if known and recorded, the genetic father (Public Health Law ["Pub. Health L."] § 4138 [c]).

In the context of gestational surrogacy, at least one New York court has ordered that a new birth certificate issue naming the genetic mother and her husband, the genetic father, in lieu of the gestational mother (Doe v New York Board of Health, 5 Misc 3d 424 [Sup Ct, NY County 2004];*fn25 see also Arredondo v Nodelman, 163 Misc 2d 757 [Sup Ct, Queens County 1994]). In accordance with the May 14, 2008 Executive Order, supra, the State Department of Health is now issuing birth certificates to same sex couples validly married elsewhere showing both marital partners as the parents of children born to the marriage in New York (see New York State Department Memo, Series 631.0, Recognizing same-sex marriages performed legally in other jurisdictions [Dec. 8, 2008]) as is the New York City Department of Health (see City Eases Rule for Lesbian Moms, available at http://www.newsday.com/news/local/newyork/ny-nyles266083613mar26,0,930254 [accessed March 26, 2009]). This recognition should also be available to In-grid and Mona, albeit retroactively.

A birth certificate is, however, only prima facie evidence of parentage (Pub. Health L. § 4103) and does not, in and of itself, confer parental rights that must be recognized elsewhere. Accordingly, although the parties here may obtain a new birth certificate by virtue of their marriage, that birth certificate alone, without some judicial determination of Mona's parentage*fn26 would provide insufficient protection of Mona's parental rights.

III. BIOGENETIC BASES FOR PARENTAGE

No New York statute deals directly with the issue presented here: whether the law should recognizeboth parties in a committed lesbian relationship*fn27 - one of whom is the gestational mother, and the other of whom is the genetic mother of a child - as the child's legal parents without the necessity of an adoption. There is little statutory law directed at ARTs, and then only in the context of artificial insemination (DRL § 73) (severing any rights or responsibilities of an anonymous sperm donor and conferring paternal rights on the consenting husband of a woman inseminated by a doctor) or gestational surrogacy (DRL § 122) (making parties' agreements to sever maternal rights of a gestational mother illegal).

There is, however, substantial law on genetic parentage, denominated "paternity," including both judicial filiation proceedings under DRL Article 5, and the simplified acknowledgment proceedings of DRL § 516-a and Social Services Law ("Soc. Serv. L.") § 111-k or Pub. Health. L. § 4135-b. Subjected to Equal Protection analysis under both the state and federal constitutions,*fn28 these existing laws provide a potential means for resolving the instant issue, even in the absence of more specific action by the legislature.*fn29

A. Paternity / Filiation Proceedings*fn30

The parentage of a child born out of wedlock is typically established through paternity proceedings, governed by Article 5 of the Family Court Act.*fn31 The proceedings are commenced by a petition (FCA § 523), and require a hearing at which "[t]he mother or the alleged father shall be competent to testify, but the respondent may not be compelled to testify" (FCA § 531). If the proceeding is contested, DNA or other genetic marker tests may be ordered, and the results of such test[s] are admissible in evidence (FCA § 532; see also Sandra C. v Thomas J.S.,100 AD2d 119 [2d Dept 1984]) (upholding use of the tests against a self-incrimination claim). Such tests are not, however, necessary, where paternity has been conceded, explicitly or implicitly (see Wilson v Lamb,181 Misc 2d 1003 [Sup Ct, St. Lawrence County 1999]). If the court finds the male respondent to be the father of the child, it makes "an order of filiation, declaring paternity" (FCA § 542), which order is then transmitted to the appropriate officials so that a new birth certificate may be issued (FCA § 543; Pub. Health L. § 4138 [1] [b]). The court may also, if necessary, make an order of support (FCA § 545), and/or of visitation (FCA § 549).

B. Acknowledgment of Paternity

There is an even simpler procedure available to unmarried parents who both agree as to the man's parentage.*fn32 The mother and putative father may execute an acknowledgment of paternity, either immediately preceding or following the in-hospital birth of the child*fn33 (Pub. Health L.§ 4135-b [1] [a]), or subsequently (Soc. Serv. L § 111-K), in accordance with the formalities enumerated in the relevant statutory provision*fn34 (FCA § 516-a). After filing the acknowledgment, a new birth certificate issues showing the birth mother and (former) putative father as the child's "natural" parents (Pub. Health L. § 4138 [1] [e]).

C. Equal Protection

Equal protection analysis here rests, as a threshold matter, on a relatively recent body of case law that has established some basic principles, unknown to and perhaps unimagined by the legislators who enacted the relevant provisions of the Family Court Act, Public Health Law and Social Services Law. First, and most critical, is the premise, endorsed by the Court of Appeals in In re Jacob (86 NY2d 651 [1995], supra)that a child's legal parents may be of the same sex, that is, rather than one mother and one father, a child may have two mothers, or two fathers*fn35(see also Perry v Fasano, 276 AD2d 67, 74 [1st Dept 2000]) ("under some . . . circumstances we would have to treat both genetic and gestational mothers as parents . . . "). Following second parent adoptions, both parents, albeit of the same sex, are listed on the new birth certificate;*fn36 similarly, a recent executive order requires that birth certificates of children born in New York to a same sex couple validly married elsewhere list both parties to the marriage as parents (see May 14, 2008 Executive Order, supra). Thus, in New York, there is no legal impediment to recognizing the parentage of two mothers.

Decisions in this and other states have also established the principle that, in cases involving ARTs, the legally recognized state of "motherhood" can derive from (1) gestation (see e.g. McDonald v McDonald, 196 AD2d 7 [2d Dept 1994]) (wife who was gestational mother was the "natural mother"); or (2) genetics (Doe v New York City Department of Health, 5 Misc 3d 424 [Sup Ct, NY County 2004] (granting an "order of maternity" to a genetic mother and directing issuance of a second birth certificate reflecting that determination); Culliton v Beth Israel Deaconess Medical Center, 435 Mass 285, 756 NE 2d 1133 [2001];*fn37 Arredondo, 163 Misc 2d 757, supra (declaring genetic mother the legal mother and directing City to issue new birth record to reflect that fact); Belsisto v Clark, 644 NE 2d 760, 67 Ohio Misc 2d 54 [Ohio C.P. 1994]) or (3) both (see e.g. K.M. v E.G., 37 Cal 4th 130[2005], supra).

Examined in light of these developments, the guarantee of constitutional equal protection, discussed below, sharply presents the question: why should an unmarried man who is genetically related to, and who has established a parental relationship with a child*fn38 be permitted to establish legally protected and recognized rights of parentage through statutory acknowledgment or filiation proceedings when a similarly situated*fn39 woman cannot? Or, put another way, why shouldn't the lesbian genetic mother of a child born to her partner be permitted to utilize either of the existing statutory paternity procedures to establish her parentage status and rights, rather than being limited to the more expensive, time consuming and intrusive*fn40 adoption mechanism?

D. The Constitutional Standard

Under both state*fn41 and federal constitutions, equal protection requires that gender-based classifications be subject to "heightened scrutiny" (People v Liberta, 64 NY2d 152 [1984]; e.g. Mississippi University for Woman v Hogan, 458 US 718, 725-726 [1982]; Craig v Boren, 429 US 190, 197 [1976]). That is, they must serve "important governmental objectives" and "the discriminatory means employed [must be] substantially related to the achievement of those objectives (United States v Virginia, 518 US 515, 533 [1996]; People v Liberta, 64 NY2d at 168).

Applying these principles to New York's statutory scheme, it is clear that provisions permitting the biological ("putative") father of a child born out of wedlock to establish parental status while excluding the genetic mother from the same opportunity is a constitutionally prohibited gender - based classification. The governmental interest underlying New York's paternity laws - which themselves abrogated common law affording legal parentage only to men married to a child's mother - is to protect the welfare of the "illegitimate child" by assigning support obligations to a second person biologically connected to the child*fn42 (see L. Pamela P. v Frank S., 59 NY2d 1, 5 [1983]).*fn43

That is, in essence, the same governmental interest cited in In re Jacob to permit adoptions by same sex couples (see Scheinkman, Practice Commentary to DRL § 110, McKinney's Consol Laws of NY, Book 14, p. 26 [1999]). And even as the Court in Jacob did not distinguish between potential adoptive parents based on their gender/sexual orientation, there is no rational, much less compelling, reason to discriminate between male and female genetic parents who seek to use N.Y.'s statutory paternity laws to establish parental rights, as well as corresponding responsibilities, to their children.*fn44

Having established impermissible gender-based discrimination, the question becomes what should be done with the overtly discriminatory (paternity) statutes. Where a statute's gender classification fails to meet the heightened scrutiny standard, courts have several choices: they may construe the statute in a way that avoids constitutional infirmity (People v Barber, 289 NY 378, 385 [1943] (a "statute should be construed when possible in a way that removes doubts about its constitutionality"); Rachelle L. v Bruce M., 89 AD2d 765 [3d Dept 1982](substituting genderneutral language in FCA § 532 to avoid constitutional infirmity); Lisa M. U.U. v Mario D. V.V., 78 AD2d 711 [3d Dept 1980]) (reading FCA § 514 as gender neutral to preserve constitutionality), or they may declare relevant parts of the statute unconstitutional. Where the constitutional defect is due to underinclusion, "a court may either strike the statute, making it applicable to nobody, or extend the statute to those previously excluded" (People v Liberta at 170). The choice depends on what the court believes the legislature would have done "if it had foreseen [the] under inclusiveness" (Matter of Westinghouse Electric Corp. v Tully, 63 NY2d 191, 196 [1984]).

To the extent it is possible to predict what the legislature would have done if it had foreseen the under inclusiveness of the paternity statutes, it seems apparent that it would have extended those statutes to genetic mothers. Although the legislature has not yet legalized same-sex marriage, given the undeniable legislative purpose of paternity and filiation proceedings to provide two parents, and two sources of support for children born out of wedlock - it is inconceivable that the legislature would decline to provide those same protections just because the second, genetically related parent is a woman, not a man.*fn45

Chief Judge Kaye's opinion in Matter of Jacob is illustrative. Construing an unclear statute to ensure its constitutionality she wrote:

A construction of [DRL § 117] that would deny children [like those whose second parent adoptions were under review] the opportunity of having their two de facto parents become their legal parents, based solely on the biological mother's sexual orientation . . . would not only be unjust under the circumstances, but also might raise constitutional concerns in light of the adoption statute's historically consistent purpose . . . the best interest of the child. 86 NY2d at 667 (citations omitted).

So too here, the consistent purpose of serving children's best interests by providing them with two responsible parents, rather than one, requires that paternity proceedings and acknowledgment of paternity should be made available to lesbian genetic co-mothers.

Although New York has not adopted the Uniform Parentage Act ("UPA") (ULA Parentage §§ 101-905 [2000], ULA Parentage §§ 1-30 [1973]),*fn46 that model statute provides additional support for extending the availability of paternity proceedings to genetic mothers (see UPA § 106 [2000]). UPA § 201 (2000) presumptively designates a child's gestational mother as her legal mother, but also allows for establishment of a legally recognized parental relationship by a genetic mother (see Belsisto,644 NE 2d 760[interpreting Ohio's UPA]; Lilith at 235, supra). The UPA does not, itself, provide procedures for determining "maternity" other than by gestation,*fn47 but contains several provisions by which a man can establish paternity, including through proof of genetic parentage (UPA article 5 [2000]; UPA § 12 [1973]).*fn48 Significantly, UPA § 106 (2000) and UPA § 21 (1973) state that any relevant sections of the UPA, presumably including UPA § 204 (2000) and UPA § 4 (a) (1973), can be applied to establish maternity as well,*fn49 Lilith, id. So, also, should New York's existing procedures for establishing paternity be available for determination of the legal parenthood of a genetic mother.

IV. FULL FAITH AND CREDIT FOR ADOPTION

The parties' argument for an adoption here is based on their desire to have a determination of parentage that will be recognized everywhere, as opposed to one that other jurisdictions may be free to disregard. Although there is no Supreme Court decision on point, federal courts that have considered the issue have held that a judicial order of adoption in one state must be afforded full faith and credit in every other state, and that there can be no "public policy" exception to that mandatory recognition (Finstuen, at 1152; Adar v Smith, 2008 WL 53 78130 *4, 2008 US Dist LEXIS 106549 *9 [ED La 2008]). That is also the view of most commentators (see e.g. Rhonda Wasserman, Are You Still My Mother?: Interstate Recognition of Adoptions by Gays and Lesbians, 58 Am U L Rev 1 [2008]; Barbara J. Cox, Adoptions by Lesbian and Gay Parents Must Be Recognized by Sister States as Under the Full Faith and Credit Clause Despite Anti-Marriage Statutes That Discriminate Against Same Sex Couples, 31 Cap U L Rev 751 [2003]; Joan Heifetz Hollinger et al, 1-3 Adoption Law and Practice § 3.06 [6] [2008];Eugene F. Scoles et al, Conflict of Laws § 16.6 at 703 [4th ed 2004]).

Assuming that New York's statutory paternity proceedings are available to Mona because of the requirements of Equal Protection,*fn50 the question is whether either an order of filiation or an acknowledgment of paternity would afford Mona - and, of course, Sebastian - a legally recognized parental relationship outside this state's borders.

On its face, for Full Faith and Credit purposes, a judicial order of filiation should produce the same result as an adoption.*fn51 In contrast, an "acknowledgment of paternity" would facially appear to offer no protection under the Full Faith and Credit clause, since it is not a judgment, order or decree, nor the result of "judicial proceedings." However, the Public Health Law specifically provides, "[a]n acknowledgment of paternity executed by the mother and father of a child born out of wedlock shall establish the paternity of a child and shall have the same force and effect as the judgment of a court of competent jurisdiction" (Pub. Health L. § 4135-b [3] [a] [emphasis added]).

Moreover, federal law requires states receiving federal funding for child support collection to grant full faith and credit to acknowledgments of paternity from other states that comply with the requirements of Title IV-D of the Social Security Act (42 USCA, ch 21, § 666[a] [1] - [10];*fn52 see also 45 CFR 302.70 [a] [9] [ii]). At present all states have enacted provisions,*fn53 like New York's FCA § 571(11) , containing a full faith and credit provision. However, extension of New York's paternity acknowledgment to genetic mothers would depend on construction of the statute by courts of this state; other states would be free to take a contrary view, such that reliance on the federal statutory guarantee offers no absolute guarantee of recognition to Mona and Sebastian. Nor would the Full Faith and Credit clause itself require recognition without a public policy exception*fn54 since it does not apply to a state court's construction of its own statutes (Finstuen, 496 F3d 1139 [2007], supra).

If certainty is what the parties want, and Sebastian needs, reliance on a gender neutral acknowledgment of paternity may not provide all the protection available either from a judicial filiation proceeding or the second parent adoption requested here.

V. JURISDICTION

The Domestic Relations Law grants "exclusive original jurisdiction" over "proceedings to establish paternity" to the Family Court (DRL § 511), but also provides that

In accordance with the provisions of Section one hundred eleven-b of the domestic relations law, the surrogate's court has original jurisdiction concurrent with the family court to determine the issues relating to the establishment of paternity (emphasis added).

This rather opaque distinction is somewhat clarified by the language of DRL § 111-b, which permits surrogates "to determine any issue of paternity in the course of [an adoption] proceeding and to make findings and issue an order thereon" (DRL § 111-b [1]). The surrogate is expressly prohibited from granting any relief "relating to support of the child" "incident" to a "determination" of paternity (DRL § 111-b [2]); as the section concludes:

A judge of the family court shall continue to exercise all of the powers relating to adoption and declaration of paternity conferred upon the family court by law" (DRL § 111-b [3] (emphasis added).

Thus it appears that this court could "determine parentage" under a constitutional, gender-neutral reading of the paternity laws, but only "in the course of an adoption proceeding." Even then, it is unclear whether a surrogate could make a "declaration" of parentage that is the equivalent of an Article 5 Family Court judgment. There is, however, little practical effect, even were jurisdiction most broadly construed,*fn55 since all the disadvantages of the adoption proceeding necessarily attend any exercise of this court's power.

CONCLUSION

Sebastian's genetic mother has other potential legal avenues: first, to be listed on Sebastian's birth certificate; second, with her partner, In-grid, to execute a statutorily prescribed acknowledgment of paternity [filiation]; and third, to obtain a judicial order of filiation. Only the last of these is presumptively subject to Full Faith and Credit. This court, however, lacks jurisdiction to confer legal parentage in any way other than by granting the adoption requested by the parties. And, although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both In-grid and Mona as his legal parents throughout the entire United States.

Mona's petition to adopt Sebastian is, therefore, granted, and, as a matter of law, in addition to her own genetic and loving connection, she is accorded all the rights and responsibilities appurtenant to the relationship of parent to her son Sebastian.


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