As a parent myself, I have thought about this question in philosophical and pragmatic terms. As a parent, I must be present with and for my child. I work hard to provide her with a comfortable life. I listen to her problems and celebrate her joys. I look her in the eye and put down my phone when she is telling me about her audition for the school play. It means that I work from home when she is sick with a fever and sore throat. I chaperone her field trips (if she allows) and I help her study for exams and complete homework assignments without doing the work for her. In New York, however, until only a couple of weeks ago, all of these parental actions, even when executed from birth, did not give rise to parental rights in the eyes of the law. In other words, if a married couple could not conceive in the typical manner, and relied upon a surrogacy contract or donor sperm, the non-biological parent had no legal recourse if the other parent abducted the child or moved across state lines, unless he or she legally adopted the minor.
In my case, my chid is a biological product of myself and her father, without question. But conceiving and giving birth are the easy parts of parenting. Parenting is really the sleepless nights you spend when your child is ill and the sacrifices you make to give your child a better life. In New York, the court did not acknowledge a parental relationship unless there was a biological or adoptive relationship. The court does acknowledge the legitimacy of a child conceived from in-vitro fertilization with donor sperm where the couple is married. However, in the case of life partners who never legally marry, including same-sex couples who used donor sperm or surrogacy contracts to conceive a child, in the event the non-biological parent does not formally adopt the child, he or she could be stripped of access to the child without any legal means of obtaining custody or visitation. This meant that, in effect, the parent who did not carry the child or donate the sperm could not petition the court for custody or visitation rights, regardless of the evidence of a parental relationship. The non-biological parent could raise, care for, nurture, and support the child and the biological parent could simply leave the jurisdiction with the child, to no legal effect.
On September 6th of this year, the 2nd Department, Appellate Division decided a case, on appeal from the Orange County family court, which turns years of precedent on its head, affirming an extension of the definition of parent decided by the 3rd Department in Matter of Brooke S.B. v. Elizabeth A. C.C., 2016 N.Y .Slip.Op 05903. In Brooke, the court held that the former definition of parent, which only extended parental rights to a biological or adoptive relationship, was no longer tenable in the increasingly varied family relationships. The court said that when the partner to a biological parent “shows by clear and convincing evidence that the parties agreed to conceive a child and raise the child together, the non-biological non-adoptive parent had standing to seek custody and visitation.”
In the present case, Matter of Giavonna F. P.-G. (Frank G.–Renee P.-F.), 2016 N.Y. Slip Op. 05948, 2nd Dept 9-8-16, the court examined whether Joseph, the former life partner of Frank, (the biological father), may petition the court for custody and parental rights when the child was conceived pursuant to a surrogacy contract entered into by Joseph, his sister Renee, and Frank, for Renee to be impregnated with Franks sperm and carry the child to term then surrender her parental rights. Renee, the surrogate, a mother of several children of her own, agreed to carry a child for her brother, Joseph, when he met his life partner. After several attempts at in-vitro fertilization, Renee became pregnant and gave birth to twins. The three parties agreed that Frank and Joseph would raise the children and Renee would continue to be an integral part of their lives. The children called Frank “Dad” and Joseph “Dada”.
In 2014, the fathers separated. Joseph continued to parent the children at the former residence and Renee maintained frequent contact. Several months later, Frank refused to allow Joseph and Renee access then moved to Florida with the children, without consent or petitioning the court. Renee then filed an emergency petition for custody and access to the children and Joseph filed for guardianship, then custody. Frank filed a motion to dismiss the petition arguing that Joseph lacked parental standing to seek custody. The family court denied the motion, and Frank appealed the decision to the 2nd Department, which affirmed the lower court, holding that Joseph did have standing, because he had proved by clear and convincing evidence that he and Frank entered into a pre-conception agreement to have the children and raise them as parents. Thus, Joseph may properly seek custody of the children. The surrogacy contract, however, did not deprive Renee of parental rights.
What does this mean to same-sex couples? In effect, the decision allows for unmarried same sex partners, who decide to conceive a child together through a surrogate or donor sperm, to have equal rights to parent the child born from this agreement, regardless of whether the non-biological parent has formally adopted the child. Although an adoption proceeding is the best route to ensure continued access to the child in these cases, it does not prevent the non-biological parent from obtaining custody when there is clear and convincing evidence that the parties intended to have and raise the child together. In the case of married couples who enter into a surrogacy agreement, there is a presumption of legitimacy by the court, which means that the child is presumptively the child of the married couple and both have equal rights of access to the child in the event of divorce.
If you are the non-biological parent of a child born from a surrogate or in-vitro, it is still in your best interests to ensure continued access to the child by consulting with an adoption attorney to prevent future litigation. In particular, where the surrogate has continued access to the child, the contract alone does not prevent her from exercising her parental rights when an adoption has not been finalized.