In the Matter of the Adoption of Seb C-M: Victory or Defeat?

Back in 2011, the New York State legislature enacted the Marriage Equality Act which stated that a marriage shall be recognized by the State as valid “regardless of whether the parties to the marriage are of the same or different sex.”  As a result, same-sex couple were able to enter into marriages in New York State and those who were married validly elsewhere are recognized as married in the State.  When lesbian couples have children in the marriage, they are both named as parents on the birth certificate because married couples are presumed to be the legal parents of children born in the marriage.  The birth mother goes on the birth certificate as a matter of course and the partner is named as co-parent based upon their marital relationship.

Not every state affords these protects to same-sex couples.  In order to protect themselves in the event of a relocation or travel out of state, lesbian couples routinely take the precaution of completing a step-parent adoption so that the non-birth parent has the dual protection of the birth certificate and an adoption decree.  While other states may not recognize the validity of the marriage, other states do routinely honor adoption decrees issued from foreign courts.

It came as a shock to many on the LGBT community when, last month, Judge Margarita Lopez Torres of the Kings County Surrogate’s Court denied an adoption to a lesbian couple who, in the judge’s own words, filed such an adoption.  In the Matter of the Adoption of a Child Whose First Name is Seb C-M, File No. X 2013-21 (Surrogate’s Court of the State of New York, County of Kings).

In this particular instance, the couple was legally married in Connecticut in April 2011.  The marriage was fully recognized by New York State first as a result of Governor Paterson’s executive directive and subsequently by passage of the Marriage Equality Act.  When their child was born in the marriage, the birth certificate issued named both spouses as legal parents of the child.

Based on existing New York law and the facts before the court, Judge Margarita Lopez Torres denied the adoption, stating that prior to recent case law and passage of the Marriage Equality Act, the court would not have hesitated to approve the adoption but “today no such action is warranted or permitted by this court to affirm an existing, recognized and protected parent-child relationship.”

The Judge further stated that to approve the adoption would “imply that, notwithstanding the existing and lawful marital relationship between the petitioner and her spouse, true marriage equality remains yet to be attained” and “a same-sex marriage remains somehow insufficient to establish a parent-child relationship between one particular parent and any child born within that marriage.”

If the court will not permit the couple to pro-actively protect their rights, what remedy do they have in the event of a relocation or travel to a state hostile to marriage equality?  The couple would need to seek redress in that state for the violation of rights.

In an ideal world, there would be no need for this non-birth parent to seek an adoption decree as further evidence of her parental rights.  In an ideal world, this decision would be celebrated as evidence that equality has truly been achieved.  As a practical matter, many lesbian couples who are contemplating parenthood in New York State may fear that they will not be able to protect themselves in the absence of an adoption decree and certainly would like to prevent the emotional and legal trauma of a civil rights violation rather than experience it.

It remains to be seen whether this decision will represent a well-meaning outlier or a new precedent in New York.

News out of Kansas

In recent weeks, news out of Kansas has been troubling for families and professionals involved in the reproductive law field.

Last week,  Shawnee County District Court Judge Mary Mattivi ruled that the State of Kansas can declare a man the legal father of a child, with the resulting financial obligations, despite the existence of a fully executed contract absolving him of financial responsibility.

In this instance, the man was a sperm donor who donated his sperm to a lesbian couple for their use in creating a family.  The sperm donor and the couple executed an agreement recognizing him as a sperm donor and absolving him of any legal or financial responsibilities toward the child resulting from his donation.  The couple conceived a daughter through artificial insemination without the assistance of a physician.  Later, the couple separated and the birth mother sought state assistance.  The State of Kansas petitioned to have the sperm donor declared the legal father of the child with the accompanying financial responsibilities.

The absence of a physician’s involvement in the artificial insemination procedure was a dispositive fact in the court’s analysis and decision.  In Kansas, the artificial insemination statute that “[t]he donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived.”  See K.S.A. Sec. 23-2208(6)(f).

According to Judge Mattivi, the sperm donation at the heart of this case does not benefit from the protection of this statute because the parties did not seek the assistance of a physician in the conception process.

Without the protection afforded by the statute, Judge Mattivi held, “A parent may not terminate parental rights by contract … even when the parties have consented.”  See State of Kansas v. W.M., 12 D 2686 (District Court of Shawnee County, January 22, 2014), available at www.shawneecourt.org.

The sperm donor will appeal the ruling.

More recently, Kansas state legislator Senator Mary Pilcher-Cook has proposed a bill which would void any surrogacy contracts and create a misdemeanor for individuals to be involved in compensating a woman for acting as a surrogate.  Persons convicted of a misdemeanor under this bill, if the bill becomes law, would face penalties of up to $10,000 and sentences of to up to one year in jail.

Kansas does not currently have any law addressing surrogacy and is considered by many to be a state friendly to surrogates and their intended parents.

A hearing held about the bill exposed both strong support and strong opposition to the bill in the state.  Senator Cook represents a conservative Republication viewpoint in the Kansas legislature.  She admits she is uncertain when the Senate Public Health and Welfare Committee, of which she is the Chairwoman, will act on the bill.

Significantly, other conservative Republican Senators have issued statements that they do not support the bill.  In fact, Senate President Wagle has issued such a statement and further commented that “criminalizing surrogate mothers in not a priority of this Legislature.”

Sources for this blog post include: Kevin Murphy, “Kansas sperm donor to appeal ruling that he must pay child support, “(January 23, 2014), available at www.reuters.com; Michael Winter, “Kansas sperm donor to appeal ruling over child support,” USA Today (January 24, 2014), available at www.usatoday.com; John Hanna “Kansas measure against surrogacy draws opposition,” (January 27, 2014), available at 222.ctpost.com.