(Background reading: What is a birth order? An Overview)
Summary: New York does not issue pre-birth orders, but it does recognize out of state pre-birth orders. A post-birth order per se does not exist but using orders of maternal and paternal affiliation, it is possible to achieve the functional equivalent of a post-birth order, at least when the intended parents are also the genetic parents in a gestational surrogacy situation.
New York does not issue pre-birth orders, and New York Domestic Relations Law declares (at least commercial) surrogacy agreements to be contrary to public policy.
However, New York upheld a California “pre-birth order and judgment of paternity” (D.P. v. T.R., F-04079-10), based on federal and state law and the full faith and credit clause. The NY Magistrate held that the parentage decision of a California court was entitled to recognition in NY.
- In that case, two gay men from New York used an egg donor and a surrogate (gestational surrogacy) in California, and got a pre-birth order from California that named both the biological father and his partner as the parents of the yet unborn child. When they broke up years later, the biological father sued the non-biological father for child support. The non-biological father claimed that NY public policy should bar him from being viewed as a legal parent based on the CA judgment, but the Support Magistrate, Rachel Parisi, disagreed.
Altruistic surrogacy agreements do not seem to contravene public policy, and it is not necessary to go through an adoption process after the birth to establish the parental rights of the intended parents.
In August 2011, New York issued a post-birth order of maternal filiation which declared the genetic mother of a child born of a gestational surrogate to be the child’s legal mother. Together, a matching set of orders of paternal filiation and maternal filiation should effectively function as a birth order.
T.V. (Anonymous) v New York State Dept. of Health (2011 NY Slip Op 06229, Decided on August 9, 2011, Appellate Division, Second Department)
In T.V., a married heterosexual couple engaged in an altruistic (non-commercial, no payment) surrogate contract:
- The gestational surrogate was implanted with eggs of the genetic mother fertilized by the sperm of the genetic father, her husband.
- The three parties involved – genetic parents and gestational surrogate, sought a pre-birth judgment of parentage, which was denied.
- When the baby was born, the gestational surrogate was entered as the mother on the birth certificate, with no father listed.
- After the birth, the gestational surrogate and her husband executed documents relinquishing any and all parental rights to the child.
- Two weeks after the birth, the Supreme Court held a paternity hearing, taking both couples’ testimony, and issued an order of filiation that recognized the genetic father as the legal father.
- The two couples then sought a maternal order of filiation to recognize the genetic mother as the legal mother. No maternal order of filiation had been issued or recognized in New York prior to that and the Supreme Court refused.
- The couples appealed the Supreme Court decision on the basis that allowing a paternal genetic filiation order but not a maternal one violates the United States and NY constitutional equal protection clauses.
- The Department of Health argued that the biological differences between men and women and/or the state’s interest in establishing accurate parentage justified the apparent violation.
- DOH also argued that even an altruistic surrogate contract violates New York Domestic Relations Law 122 and that the couple’s request for a maternal order of filiation was contingent on a void and unenforceable contract.
Conclusion: The Court of Appeals found that the Supreme Court does have the authority to issue a maternal order of filiation, that discrimination between demands for maternal and paternal order of filiations after birth is not justified, and that the validity of the surrogate contract is immaterial to the question of the order of filiation, since the court is not being asked to enforce the contract.