Instantie

Surrogate’s Court

Samenvatting

Adoptie door meemoeder van kind van vriendin/moeder. Het kind is verwekt
door middel van kunstmatige inseminatie met zaad van een bekende donor. De
Surrogate’s Court New York vindt dat deze adoptie in het belang is van het
kind. Het kind verkrijgt hierdoor een aantal financiele voordelen, wettelijke
rechten en erfrechtelijke aanspraken. Het emotioneel voordeel voor het kind
is wellicht nog van groter belang. Geen vereiste bij adoptie is dat de
adoptief ouder van een bepaald geslacht is. Bovendien mag geen onderscheid
gemaakt worden op grond van homoseksualiteit. Wel moet de biologische moeder
toestemming geven voor adoptie evenals de biologische vader. De vader heeft
in casu afgezien van alle rechten met betrekking tot het kind. Een kind wat
goede verzorging, scholing en onderdak geniet met bovendien twee liefhebbende
ouders behoort tot de bevoordeelden in de maatschappij. Er is geen reden te
bedenken om een zo wenselijke situatie tegen te gaan.

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The petitioners in this adoption proceeding are two women: V., the
biological mother of a six year old boy and her life partner, D. They have
raised the boy together since his birth and now seek legal recognition of
their mutual status as parents. This appears to be the first such application
in New York.

Because of the significant issues of first impression and the importance of
the infant, the Court appointed Professor L., distinguished Professor of
Family Law and Social Policy at New York University Law School, as guardian
ad litem for the child. Professor L. was asked to investigate whether the
proposed adoption is in the child’s best interest. Her thoughtful and
thorough Report found that it was and recommends that the Court grant the
petition.

A home study by a licensed social worker retained by the Petitioners also
found the adoption to be in the best interest of the child. The Court
appointed a second licensed social worker to conduct a independant
investigation. She agreed that the proposed adoption was in the boy’s best
interest. The reports of Professor L. and the two social workers reveal the
following facts:

the petitioners, D. en V. have lived together in a committed, long term
relationship, which they perceive as permanent, for the past fourteen years.
D., age 39, is an Assistant Professor of Pediatrics and an attending
physician at a respected teaching hospital. V., age 40, holds a Ph. D. in
developmental psychology and teaches at a highly regarded private school.

In 1985 D. and V. decided to have a child together.

Pursuant to their joint plan, V. was artificially inseminated with sperm
obtained from a friend who formally relinquished any claim he might otherwise
have had in relation to the child.

Evan was born in November of 1985 and has lived with the parties since his
birth. Both home studies describe D. as a warm, loving and nurturing woman
who is committed to Evan and is an effective parent to him. Evan himself is
evaluated as a bright, confident and independent young boy with a strong
parental bond with both women. He ‘seems to accept the fact that he has two
mothers and seems to have an equal bond with both’ (Kling Study p. 2) and is
a ‘charming, well nourished and articulate child who relates well to peers
and adults’ (Walter Study p. 3). He has a strong parental relationship with
D., whom he calls Mama D. and an equal relationship with his biological
mother, V. whom he refers to as Mama V.

It seems clear that the proposed adoption is in Evan’s best interest. He is
part of a family unit that has been functioning succesfully for the past six
years. The adoption would bring no change or trauma to his daily life; it
would serve only to provide him with important legal rights which he does not
presently possess. It would afford him additional economic security because
D. would become legally obligated to support him (Domestic Relations Law ºº
236, 240). He would also be entitled to inherit from D. and her family under
the law of intestate succession (EPTL ºº 2-1.3, 4-1.1) and be eligible for
social security benefits in the event of her disability or death (42 USC º
402 (d)(1983)). Of immediate practical import, he would be able to
participate in the medical and educational benefits provided by her
employment, which are more generous than those possessed by V.

There is another potential benefit to Evan if he is adopted by D. Although
today Evan enjoys the devotion and support of two parents who love him and
each other, in the event of their separation, it would be beneficial for Evan
to retain his filial ties to D. In such event, it is known to be better for
a child to continue its relationship with both parents, and the law
recognizes this by ‘presum(ing) that parental visitation is in the best
interests of the child, absent proof that such visitation would be harmful’
(Wise v.Del Toro, 122 AD2d 714 (1st Dept. 1986); see also, Resnick v. Zoldar,
134 AD2d 246 (2d Dept 1987); Bubbins v. Bubbins, 114 AD2d 346 (2d Dept 1985).
Yet if petitioners were to separate in the absence of adoption, under the law
of New York (Matter of Alison D. Y. Virginia M., 77 NY2d 651 (1991) and some
other jurisdictions Sporleders Y. Hermes, 471 NW2d 202 (Wis. 1991); Nancy
S.Y. Michele G., 228 Cal. App. 3d 831, 279 Cal. Rptr. 212 (1991) Diana would
have no right to visitation even if it were demonstrated that denying
visitation would be harmful to Evan. In Alison D., supra, the Court of
Appeals recognized that adoption would avoid this unfortunate result see 77
NY2d at 656. The California court in Nancy S., supra, recommended adoption
as a solution, noting that “we see nothing in (our) statutory provisions
(similar to those in New York) that would preclude a child from being jointly
adopted by someone of the same sex as the natural parent”. 279 Cal. Rptr. at
219 n.8.

Even if, as anticipated, the petitioners remain together, there is a
significant emotional benefit to Evan from adoption which is perhaps even
more crucial than the financial. Separate or together, the adoption brings
Evan the additional security conferred by formal recognition in an organized
society. As he matures, his connection with two involved, loving parents will
not be a relationship seen as outside the law, but one sustained by the
ongoing, legal recognition of an approved, court ordered adoption.

Having determined that adoption would, for all above reasons, be in Evan’s
best interests, the issue remains whether there is anything in the law of
this state which would prohibit it. The Court has scrutinized the relevant
statutes and finds no obstacle.

Under New York Law, ‘(a)n adult unmarried person or an adult husband and his
adult wife together may adopt another person’ (Domestic Relations Law º
110). As an unmarried adult, D. is thus qualifies to adopt. While the second
phrase – requiring that husband and wife jointly agree to adopt a child – is
not literally applicable here, the underlying policy also supports adoption
in this case. The petitioners are a committed, timetested life partnership.
For Evan, they are a marital relationship at its nurturing supportive best
and they seek second-parent adoption for the same reasons of stability and
recognition as any couple might.

No provison of New York law requires that the adoptive parent be of any
particular gender. Indeed, New York specifically prohibits discrimination
against homosexuality in granting adoption (18 NYCRR º 421.16 [h][2]).

New York law does require the consent of certain parties to an adoption. All
of the consent requirements have been met in the instant case. Ordinarily a
child over the age of 14 must consent to be adopted (Domestic Relations Law º
111 [1] [a]), but Evan is only six. The biological mother must consent (DRL º
111 [1] [c]), and is one of the petitioners in this case. The biological
father must consent if he has maintained ‘substantial and continuous or
repeated contact with the child,'(DRL º 111 [1][d] and [e]). Here the
biological father has not met the standards that entitle him to object to
adoption, and, in any event, he has explicitly waived any right to do so.

The only statutory provision which could be contrued as impeding the instant
adoption is DRL par. 117(1), which provides that “the natural parents of the
adoptive child shall be relieved of all parental duties toward and of all
responsibilities for and shall have no rights over such adoptive child. “If
this provision were strictly enforced it would require termination of the
parental rights of V. upon granting the adoption to D. This would be an
absurd outcome which would nullify the advantage sought by the proposed
adoption: the creation of a legal family unit identical to the actual family
setup. The Court of Appeals has recognized, in another context, that

“par. 117 itself does not pretend to discourage all contacts between an
adoptive child and its natural relatives. Rather, the law contemplates that
such contacts may exist and that the natural relatives may desire to
perpetuate the sense of family. An adopted child may not … be isolated from
his or her natural family.” (People v. Sheppard, 54 NY2d 320, 325, 326,
(1981).

Thus, particularly in situations in which the adoptive and biological
relatives are known to one another and where the child has significant
contacts with them, New York recognizes the value of continued relationship.

For example, in Matter of A.J.J. (108 Misc 2d 657 (NY Co. Sur. Ct. 1981), the
natural father of a child born out of wedlock sought to adopt the child with
the mother’s consent. The Court granted the adoption and allowed the mother
to retain her parental rights, stating that

“the child should not be denied the privilege of legitimacy as well as the
care and concern of his natural mother’s property and her rights of intestacy
simply because these adult natural partens refused to marry …(and)
contravene New York’s policy of fostering the child’s best interests above
all else.” (Id. at 659).

The Court exercised its equitable power to confer back to the consenting
mother custodial rights and responsibilities in the child supra at 660 but
see, Matter of Adoptions of Hope and Rebecca, 571 NYS2d 182 (Westchester Fam.
Ct. 1991).

See also, in Matter of Adoption of Anthony (113 Misc 2d 26, 32 (Bronx Co.
Fam. Ct. 1982) where the court found that contact and invitation with the
siblings was “necessary to promote the child’s best interests”.

This Court has heretofore declined to apply the cut-off provisions of DRL
par. 117 when special circumstances exist. In Matter of Adoption of N. (355
NYS2d 956 (Sur. Ct., N.Y. 1974), Surrogate Midonick found that the best
interests of the child would be served by allowing the new stepfather to
adopt, and, at the same time, ordered substantial visitation for the
biological father. The court said, “(i)f affection and regard remains between
members of a natural family, the law should not in the name of consistency
undertake to thwart the expression of those feelings when the encouragement
thereof does not hinder the adoptive relationships” (355 NYS2d at 961
(quoting Matter of Scranton y Hutter, 40 AD2d 296, 299).

Thus where the adoptive and biological parents are in fact co- parents such
as the instant case, New York law does not require a destructive choice
between the two parents. Allowing continuation of the rights of both the
natural and adoptive parent where compelled by the best interests of the
child, is the only rational result and well within the equitable power of
this court (see, Matter of A.J.J., supra at 660).

Other jurisdictions have taken a similar approach to cut-off provisions. In
Matter of the Petition of L.S. and V.L. for the Adoption of Minors (T) and
(M) (D.C. Super, Ct Fam Div. Nos. A269-90 and A270-90, Aug. 30, 1991, 17 FLR
1523 (Sept. 17, 1991) the District of Columbia granted adoptions to two
lesbian parents in al long term committed relationship, who sought to adopt
each other’s biological child. After finding that adoptions would serve the
children’s best interests, the Court considered the effect of a statute
providing that upon adoption, “All rights and duties including those of
inheritance and succession between the adoptee, his natural parents, their
issue, collateral relatives, and so forth, are cut off, …… ” (D.C. code
par. 16-312 (a) (1989 Rept.). The court concluded that this should be read
as directory rather than mandatory, citing the principle of statutory
construction that

“where no apparent actual or potential injury results to anyone from a
failure to adhere to the provisions of a statute, a directory construction
usually prevails in the absence of facts indicating that a mandatory
construction was intended …”

(2A Singer Sutherland on Statutory construction, par. 57,03 p 644 (4th Ed.
1984). The court observed that there, as here, to require a choice between
the biological and adoptive parent

“would be a particularly counterproductive and even ludicrous result, given
the purpose underlying the filing of the petition and the court’s finding
that the petitioned adoptions would be in the best interest of each child.”
… (The provision) “is obviously not intended to apply to the situation
presented by these cases … At bottom adoption cases are decided by
application of the best interests of the child standard, and whenever
possible other considerations give away to that standard if there is a
conflict.”

Slip opinion pp 5,7.

In another similar case. In re Adoption of R.C. (Vt. P. Ct, Addison Co. No.
9088, Dec. 9, 1991) a Vermont court also rejected a literal application of
its cut off provision, approving the statement that “it would be unfortunate
if the court were compelled to conclude that adoptions so clearly in the best
interests of the (child) could not be granted because of a literal reading
of a statutory provision obviously not intended to apply to the situation
presented ….This is particularly so where no party to these proceedings
objects to the adoptions ….”

In re Adoption of R.C., citing Matter of L.S. and V.L., supra.

The fact that the petitioners here maintain an open lesbian relationship is
not a reason to deny adoption. New York law recognizes that a child’s best
interest is not predicated or controlled by parental sexual orientation. The
law explicitly provides that agencies evaluating people who seek to adopt
shall not reject applicants ‘solely on the basis of homosexuality.’ Rather
decisions shall be made in relation to the best interests of adoptive
children (18 NYCRR º 421.16 [h][2]). This is consistent with the more
general principle that a parent’s sexual orientation or sexual practices are
presumptively irrelevant in resolving custody disputes and may be considered
‘only if they are shown to adversely affect the child’s welfare’ (Guinan v.
Guinan, 102 AD2d 963, 964 [3rd Dept 1984]). Consideration of sexual
orientation or life style of a parent ‘must be limited to its present or
reasonably predictable effect upon the children’s welfare’ (Distefano v.
Distefano, 60 AD2d 976, 977 [4th Dept 1978]).

It is thus apparent that nothing in New York law prevents the granting of
this adoption. Other jurisdictions have reached simular results. While there
have been no appellate decisions, several trial courts have approved
adoptions recognizing both partners in a lesbian couple as the legal parents
of the children they are jointly raising. In some cases the non- biological
mother has been permitted to adopt the child born to her lesbian partner,
without terminating the parental rights of the biological mother.

In the Matter of the Petition of L.S. and V.L., supra; In the Matter of the
Adoption Petition of Nancy M. (Cal. Super. Ct, San Francisco Co. No. 18744
(1990), In re child

1 and child

2 (Wash. Super, Ct. Thurston Co. No. 89-5-0067-7, Nov. 16, 1989). In re
B.B.G. (Wash. super. Ct, Thurston Co. No. 87-5- 00137-5, March 29, 1989); In
the Matter of the Adoption Petition of Carol (Cal. Super, Ct. San Francisco
Co. No. 18573 (1989); In the Matter of Adoption Petition of Roberta
Achtenberg (Cal. Super. Ct., San Francisco Co No. AD 18490 (1989); In re
Adoption of a Minor Child (Ala. Super Ct, Juneau No. 1 Ju-86-73 P/A, Feb. 6,
1987); In re Adoption of A.O.L. (Ala. Super. Ct, Juneau No. 154-85-25 P/A
1985). Adoptions have been granted with the approval of the state agency or
the guardian ad litem (In the Matter of the Petition of L.S. and V.L., supra;
In the Matter of the Petition of Nancy L. and Donna J., (Cal. Super. Ct, San
Francisco Co No. 17945 (1986); In re Adoption of a Minor child, supra) and
over their objection (In re E.B.G., supra; In the Matter of the Adoption
Petition of Nancy M., supra).

Lesbian couples have also been permitted to jointly adopt the children they
are raising in cases where neither is the biological mother (In the Matter
of Adoption Petition of Anne and Rebecca [Ca. Super. Ct, Alameda Co No 17350
(1986)];

In the Matter of the Petition of Nancy L. and Donna J., supra).

Finally, this is not a matter which arises in a vacuum.

Social fragmentation and the myriad configurations of modern families have
presented us with new problems and complexities that can not be solved by
idealizing the past. Today a child who receives proper nutrition, adequate
schooling and supportive sustaining shelter is among the fortunate, whatever
the source. A child who also receives the love and nurture of even a single
parent can be counted among the blessed. Here this Court finds a child who
has all of the above benefits and two adults dedicated to his welfare, secure
in their loving partnership, and determined to raise him to the very best of
their considerable abilities. There is no reason in law, logic or social
philosophy to obstruct such a favorable situation.

Petition granted.

Rechters

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