ADOPTION BY BIOLOGICAL FATHER - PART 1

First the facts.

Matter of John (Joseph G.), 2019 NY Slip Op 05132, Decided on June 26, 2019, Appellate Division, Second Department:

"The appellant is a single, gay man who, in 2012 and under medical supervision, had embryos created using his sperm and eggs from an anonymous egg donor. The egg donor relinquished all rights to the eggs and any resulting children. The appellant had some of the embryos implanted in an unpaid ("compassionate") gestational surrogate; the remaining embryos were frozen. In 2013, twins, a boy and a girl, were born. The appellant adopted them, obtaining an order of adoption from the Family Court.

In 2017, the appellant decided to add to his family, utilizing the remaining frozen embryos. A friend of his agreed to carry the embryos and entered into a surrogacy agreement with the appellant. They agreed that the appellant would adopt the child from the surrogate and thereby relieve her of any responsibility for the child. A fertility clinic implanted two embryos into the gestational surrogate. One embryo was unsuccessful. The other embryo resulted in the birth of the subject child, John, in October 2017. John has been in the care of the appellant since leaving the hospital after his birth.

The birth certificate lists the surrogate as the mother and does not list a father. The appellant filed a petition to adopt the child. The surrogate executed an extrajudicial consent, utilizing the statutorily-mandated form, to the adoption, surrendering her parental rights (see Domestic Relations Law §§ 111[1][c]; 115-b). The surrogate also submitted affidavits in which she described the circumstances of the child's conception and birth and averred that she voluntarily agreed to have the appellant be the sole parent of the child and that, in effect, there were no other persons who had, or claimed to have, any parentage rights with respect to the child.

An adoptive home study was conducted, with extremely positive findings. The social worker found the appellant to be a mature, stable, and caring person who intentionally created a family of himself, the twins, and John. John's adjustment appeared to be excellent, and it was clear that the appellant, his twins, and John are a cohesive family unit. Medical documentation and letters of reference were also submitted.

In a decision dated March 20, 2018, the Family Court stated that it was dismissing the adoption petition, since permitting the adoption would validate "a patently illegal surrogacy contract" and there was no authority for a parent to adopt his or her own biological child. The court reasoned that to permit a biological parent to adopt his or her own child would confer rights upon a parent which already existed, and thus the purpose of the adoption statute was not served. The court stated that the appellant had other means of being named John's legal father, such as an order of filiation, and stated that it would entertain such a petition. The petition was dismissed in a separate order of dismissal of the same date. This appeal ensued."