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In re Sebastian

April 9, 2009


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.


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.



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.


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.



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