Abby Tolchinsky and Ellie Wertheim, New York Law Journal
July 21, 2015
With Obergefell v. Hodges, 576 U.S. __ (2015) the law of the land has shifted substantially and expansively. In June, the U.S. Supreme Court held that the Due Process and Equal Protection Clauses provide that marriage is a fundamental right of all people—one that may not be restricted on the basis of sexual orientation. We last visited the subject of marriage equality in our mediation column in the summer of 2011, just after the Marriage Equality Act passed in New York State.
Now, with this dramatic decision from the U.S. Supreme Court still fresh in our minds, a new range of issues arises around questions of parental rights of legally married same-sex couples. Indeed, while there has been a seismic shift in the legal definition of marriage, there has not yet followed a full understanding of how courts will address the legal definition of parent in same-sex families. In other words, the biological imperative coexists now in tension with the legal.
Parents and Donors
Children of same-sex couples conceived with an anonymous sperm donor. Where a child is born of a legal marriage with one spouse serving as the biological parent and an anonymous man providing sperm through the services of a special bank, the primary unresolved legal issue is whether the non-biological spouse is presumed to be the other legal parent or whether a second-parent adoption is still necessary. Between June 2011 and today, same-sex spouses have been advised by their counsel to continue to file for second-parent adoptions because the Defense of Marriage Act (DOMA) allowed non-marriage equality states to not recognize a valid same-sex marriage, thus denying full faith and credit to the rights and obligations of each spouse as it related to their child. Given the Obergefell decision, this is no longer a legal concern. However, there’s been a paucity of cases in New York State ruling that there is a presumption that a child is “born of the marriage.”
In contrast, in Vermont, for example, the law states explicitly that any child born of artificial insemination to a couple in a civil union has a parent in each party to the civil union.1 New York has no such statute. Rather, New York has the Marriage Equality Act and DRL Section 73. When read together, they establish the rights of both parents in the marriage, regardless of sex, where a child is born of artificial insemination. See Wendy G-M v. Erin G-M, 45 Misc.3d 574, (Sup. Ct., Monroe Cty. 2014). Given that the state has an express interest in a child benefiting from two parents, See, e.g., Matter of G., 42 Misc.3d 812, (Sup. Ct., NY Cty. 2013), the question of legal presumption would most likely arise should the biological parent seek to repudiate the parental rights of the non-biological parent, particularly in the context of a divorce.
Absent a second-parent adoption, the legal status of the non-biological parent is not a settled matter. At least one New York judge has ruled that a second-parent adoption is NOT warranted—and therefore NOT granted—reasoning that there is a presumption of legal parenthood when a child is born of the marriage. In Matter of Seb C-M, File No. X 2013-21, NYLJ 1202640083455 (N.Y. Surr. Ct., Kings Cnty. Jan, 6, 2014), Surrogate Margarita Lopez Torres, reinforcing the redundancy of adoption of a child already presumed to be the child of two married people, noted the “tectonic shifts occurring in the geography of our culture’s definition of family….The relief sought herein by the petitioner is neither necessary nor available.” She acknowledged that, prior to the passage of the Marriage Equality Act, such requests would have been routinely granted. The intention clearly is to extend settled law for heterosexual marriages to same-sex marriages. The effect, perhaps unwittingly, leaves same-sex couples in a legal limbo.
How then can they protect themselves and their children? “LGBTQ couples and families must continue to access the legal safeguards and proceedings available to ensure the stability of their families. Second-parent adoption continues to be the only way to ensure that the non-biologically related parent has a legal relationship to the child,” explains Teresa Calabrese, a mediator and collaborative attorney who serves the LGBTQ community in New York City.2
As mediators, we are accustomed to parties negotiating clauses that demonstrate intent, even where the law may not be clear, or where the language exists merely as a reference between them should conflicts arise.3 It is clear that a best-interest of the child inquiry will apply should the law settle in the manner of Wendy G-M, supra. Until such time, without a second-parent adoption, the legal status of the non-biological parent is a vulnerable one.
Children of same-sex couples conceived with a known donor. The families who use anonymous donors are in a somewhat simpler legal posture as no known third adult may enter into the legal battle for parental rights. In contrast, where children of same-sex couples are conceived with a known sperm or egg donor, there are additional complex legal issues to consider. The first is whether the known donor has surrendered parental rights contemporaneous with a second-parent adoption. In other words, if it is the intention of the same-sex spouses to become parents, there must be an adoption by the non-biological parent.
Until that time, the known biological donor is the biological parent and the non-biological parent-to-be/spouse, is a legal stranger to the child. If, for example, there is no second-parent adoption and there is a known donor who wishes to establish paternity, the paternity case will likely proceed. The non-biological parent will not likely be able to rely upon the principle that the child is born of the marriage. Courts, to rule as such, would have to deny reproductive biology.4
In trying to establish the legal doctrine of gender-neutral equality in marriage, hurdles remain. Indeed, even in the new era of Obergefell, a legally valid same-sex marriage has no effect where there is a known donor. Susan Sommer, director of Constitutional Litigation for Lambda Legal, and counsel for Supreme Court Litigation at the organization, states, “We are working around the country to ensure that the marital presumption applies fully to children of same-sex couples and that biological connections are not the sole litmus test of who is a parent.”5
That said, in mediation, it has been quite common for all three adults to create formal arrangements defining how they wish to incorporate one another into the child’s life. In arriving at a negotiated donor agreement, “a year of discussions is not uncommon,” reports Teresa Calabrese. She further explains that, “sometimes the intention is that the donor will surrender his rights and sometimes the goal among the interested parties is to come to an agreement about how they will parent cooperatively.” This necessarily requires a discussion both of parenting philosophies as well as the nuts and bolts of providing financially for the child, not to mention crafting schedules that incorporate three adults in the child’s day-to-day life. Simply put, the law, even in the Obergefell era, does not encompass these arrangements in which, in some permutations, there are, effectively, three parents. And, under New York law, there cannot be more than two legal parents of a child.
Children of same-sex couples conceived with a known egg donor/surrogate. Owing to basic biology, same-sex male couples often engage a surrogate to carry the donor egg and one father’s sperm. Though surrogacy is not legal in New York, cases have upheld second-parent adoptions in these cases. Once again, it is essential to pursue second-parent adoption in order to protect the non-biological parent’s rights. See, e.g., Matter of J.J., 44 Misc.3d, 297 (Fam. Ct. Queens Cty. 2014).
As mediators, reflecting on the long legal path to marriage equality, we still see a firm and meaningful place for same-sex couples to negotiate directly their co-parenting arrangements. That is, until the various and nuanced unsettled aspects of the biological and legal status of parents are clarified, parties stand to benefit from mediated conversations leading to thoughtful agreements. Says Susan Sommer, “Until these families receive the full respect they deserve, same sex couples should take all the precautions they can to safeguard their children.” Because of the history of discrimination and lack of full understanding of how families are evolving, at this juncture we advocate for employing the “belt and suspenders” approach: both the newly cemented legal presumption and the second parent adoption.
1. See Debra H. v. Janice R., 14 NY3d 576 (2010); Vt. Stat. Ann. tit 15, §1204[f].
2. Interview with Teresa Calabrese, July 7, 2015.
3. Couples in mediation often agree, for example, to discuss the introduction of a significant other with each other, prior to an introduction to a child; similarly they may agree to honor a grandparent’s role in the child’s life—none of which is a legally enforceable provision.
4. Matter of Q.M. v. B.C., 46 Misc.3d 594 (Fam. Ct. Monroe Cty. 2014) involves a biological father, with whom the married mother had sexual relations, filing a paternity action though the child was born of a valid same-sex marriage. Without a second-parent adoption, the presumption of legitimacy is rebutted by the relationship of the biological father. This case may be distinguished from a known donor/artificial insemination case, with an explicit donor agreement.
5. Interview with Susan Sommer, July 9, 2015.