ADOPTION AND SAME SEX MARRIAGE

This is the full opinion of the case that has been hitting the news lately:

"Matter of Seb C-M, (Surr., NY, Kings County, Decided January 06, 2014)

This is an uncontested proceeding commenced by A. C. (the petitioner) for the adoption of her infant son, Seb C-M, pursuant to DRL §111, et seq. The petitioner is married to M. M., Seb C-M's birth mother.1 In support of her petition, the petitioner offers, inter alia, a certified copy of Seb C-M's Certificate of Birth Registration, issued by the City of New York, which identifies the petitioner and her spouse, M.M., as the parents of Seb C-M.

The petitioner appears to have filed the instant application out of an abundance of caution, perhaps to ensure that, with the support of judicial imprimatur, her existing parental relationship with the infant is less susceptible to challenge in the event of the family's re-location to a jurisdiction less hospitable to the rights of same-sex couples to marry and adopt children. Indeed, the court is mindful of the uncertainty occasioned by the tectonic shifts occurring in the geography of our culture's definition of "family," particularly with respect to the increasing recognition of the right to marriage equality and adoption by same-sex families, as well as the ethical complexities arising from assisted reproductive technologies.2 However, the relief sought herein by the petitioner is neither necessary nor available.

"Adoption is the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of a parent in respect of such other person." DRL §110 (emphasis added). The "purpose and effect" of adoption is "…to create a new legal relationship where one did not previously exist. Adoption is not utilized for, nor…is it available to reaffirm, an already existing parent/child relationship." In re Sebastian, 25 Misc. 3d 567, 572 (Sur. Ct. New York Co. 2009) (emphasis in original, citations omitted).3

The petitioner herein was lawfully married to M.M. on April 29, 2011, in the State of Connecticut. The marriage of the petitioner and her spouse was fully recognized by the State of New York even before DRL §10-a took effect on July 24, 2011. See Martinez v. County of Monroe, 50 A.D. 3d 189, 193 (4th Dep't 2008), app. dismissed 10 N.Y. 3d 856 (2008) (New York must recognize as valid same-sex marriages lawfully contracted in other jurisdictions); see also Golden v. Paterson, 23 Misc.3d 641 (Sup. Ct. Bronx County 2008) (upholding Governor Paterson's executive directive that New York State agencies recognize same-sex marriages legally performed in other jurisdictions).

Furthermore, the petitioner's status as the parent of Seb C-M is reflected on his birth certificate, which serves as prima facie evidence of his parentage (Public Health Law §4103). New York courts have long held that the presumption of legitimacy afforded children born of married parents is "one of the strongest and most persuasive known to the law. " David L. v. Cindy Pearl I., 208 A.D. 2d 502, 503 (2d Dep't 1994) (quoting Matter of Findlay, 253 N.Y. 1, 7 [1930]); see also Barbara S. v. Michael I., 24 A.D.3d 451 (2d Dep't 2005). While the traditional understanding implied by the strong, albeit rebuttable, presumption is that a child is the biological offspring of her or his married parents, the court notes that recognition of marriage equality rights, coupled with advances in assisted reproductive technologies, necessarily results in application of the presumption of legitimacy to offspring of parents in lawful same-sex and opposite-sex marriages, regardless of the circumstances of conception, gestation and birth of such children. Indeed, petitioner's status is further protected by the enactment of subsection (2) of DRL §10-a:

[n]o government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy, common law or any other source of law, shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific language or terms shall be construed in a gender-neutral manner in all such sources of law.

Prior to the holding in Martinez, supra, and the enactment of DRL §10-a, this court would have, without any hesitation whatsoever, approved the petitioner's application for adoption of Seb C-M. However, today no such action is warranted or permitted by this court to affirm an existing, recognized and protected parent-child relationship between the petitioner and her son. Indeed, were this court to entertain the instant petition, such action 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 that, although legally recognized in this state, a same-sex marriage remains somehow insufficient to establish a parent-child relationship between one particular parent and any child born within that marriage, thereby raising equal protection concerns.

If in fact the petitioner's and M.M.'s intent is to secure additional protection of their family's legal relationship in order to assure its recognition in the event of relocation to a jurisdiction hostile to marriage equality, the more appropriate, and indeed necessary, course of action would be to seek redress of the denial of their civil rights in such jurisdiction. In just the past half year, following Windsor, a host of state and federal courts in disparate parts of the nation have struck down, on constitutional grounds, state laws and policies that limit the rights of same-sex couples to civil marriage. For example, in Obergefell v. Wymyslo, 2013 U.S. Dist. LEXIS 179550, 78-79 (S.D.Ohio Dec. 23, 2013), the court declared invalid provisions of Ohio's state constitution and statutes that banned recognition of out-of state same-gender marriages, stating in no uncertain terms Ohio must recognize valid out-of-state marriages between same-sex couples on Ohio death certificates…. That is, once you get married lawfully in one state, another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution.

See also Griego v. Oliver, 2013 N.M. LEXIS 414, *65-66. (Dec. 19, 2013) (New Mexico Supreme Court, ruling on equal protection grounds that the state must allow same-gender couples to marry and "extend to them the rights, protections, and responsibilities that derive from civil marriage under state law," noted that "child-rearing for same-gender couples is made more difficult by denying them the status of being married and depriving them of the rights, protections, and responsibilities that come with civil marriage" and that "[c]hildren benefit from the presumption of legitimacy when they are born to a married couple"); Kitchen v. Herbert, 2013 WL 6697874 (D. Utah Dec. 20, 2013) (holding unconstitutional "state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law" based on Windsor), stay denied, Kitchen v. Herbert, 2013 WL 6834634 (D. Utah Dec. 23, 2013), and stay granted, Herbert v. Kitchen, 2014 WL 30367 (U.S. Utah Jan. 6, 2014) ; Garden State Equality v. Dow, 79 A.3d 1036, 2013 N.J. LEXIS 1091, 2013 WL 5687193 at *6-7 ( Oct.18, 2013) (New Jersey Supreme Court denying stay of lower court decision holding that the State must extend the right to civil marriage to same-sex couples on equal protections grounds articulated in Windsor); Bassett v. Snyder, No. 12-10038, _ F. Supp.2d _, 2013 WL 3285111 at *23-25 (E.D. Mich. June 28, 2013) (enjoining enforcement of Michigan statute prohibiting public employers from providing medial and other benefits to co-habitants, holding that the statute displayed animus against same-sex couples and lacked a rational basis); and Bishop v. U.S. ex rel. Holder, 2014 WL 116013 (N.D. Oklahoma Jan. 14, 2014) (determining that an amendment to the Oklahoma state constitution which limited the definition of "marriage" solely to the union of one man and one woman intentionally discriminated against groups of persons and violated a same-sex couple's equal protection rights under the Fourteenth Amendment by preventing them from obtaining a marriage license).
Accordingly, it being wholly unnecessary to affirm the existing parental relationship between A. C. and her infant son, Seb C-M, the court hereby declines to entertain the instant petition for adoption.

1. Seb C-M was born in New York, New York on ____, 2013.

2. The court is fully cognizant of the reality that familial relationships sanctioned by the State of New York may be accorded lesser status, or even denied, in certain jurisdictions, and is wholly sympathetic to the concerns of families of same-sex couples who may wish or need to relocate to such jurisdictions. Nonetheless, any jurisdiction which fails to accord recognition to a marriage valid under the laws of the State of New York is equally likely to deny full faith and credit to decrees of adoption issued to same-sex couples by a New York Surrogate's Court.

3. In Sebastian, the petitioning parent was the genetic mother of a child born of her same-sex spouse, to whom she was legally married in the Netherlands. The petitioning parent had executed a surrender of her rights to her biological child as required by the physicians supervising the in vitro fertilization procedure, and the birth certificate reflected only the birth mother as the parent of the child. By virtue of her relinquishment of parental rights, the petitioner in Sebastian had no legal status as parent of the subject infant; thus, the Surrogate's entertainment and grant of her petition for adoption was appropriate. The Court notes that the decision in Sebastian pre-dates both the enactment by the State of New York of DRL §10-a, as well as the decisions of the United States Supreme Court in U.S. v. Windsor, __ U.S. __, 133 S.Ct. 2675 (2013) (finding unconstitutional the federal Defense of Marriage Act as denying same-sex couples the "equal liberty" guaranteed by the Due Process Clause of the Fifth Amendment) and in Hollingsworth v. Perry, __ U.S. __, 133 S.Ct. 2652 (2013) (finding that the proponents of California's Proposition 8 lacked standing to defend the law on appeal from a lower court's decision)."