Welcome and thank you to Melissa Brisman, Esq, who has written in about the newest developments in surrogacy laws in NY State, which she has been instrumental in changing as she has in NJ and elsewhere in the Northeast. Here she explains the change and how it differs from egg donor contracts as well.
WHO IS THE MOTHER?
Why should a genetic mother have to adopt her child because the child was born to a gestational surrogate?
Why should a genetic mother’s rights differ from that of a genetic father?
In a recent case, we argued these issues and won. See T.V. v. New York State Department of Health, 6557/09 (http://www.nycourts.gov/reporter3dseries/2011/2011_06229.htm)
A gestational surrogate offered to carry a child without compensation for her close friends, a married couple, because the wife had undergone a hysterectomy, and was unable to carry a child. The wife’s eggs were fertilized with her husband’s sperm. Therefore, the resulting embryo contained the genetic make up of both the husband and wife, i.e. the intended parents. There was no genetic connection between the gestational surrogate and the embryo. If had an egg donor been used and fertilized with the husband’s sperm, there would have been no genetic link between the wife/intended mother and the embryo.
When the child was born, the New York Department of Health issued a birth certificate which placed the gestational surrogate’s name as mother, and did not include any name as father. After the birth, the genetic father’s name was added to the birth certificate, but the name of the gestational surrogate remained on the birth certificate. In order to correct the inaccuracy, the genetic mother’s only option would have been to request and file an adoption of her own genetic child. We argued that this violated the genetic mother’s constitutional rights to equal protection and due process.
In a unanimous decision published on August 9, 2011, the Appellate Decision sided with the genetic parents by finding that an adoption is the “legal process by which a parent/child relationship is created where none previously existed,” in this case however, “there is already a preexisting relationship, a genetic link, between the Genetic Mother and her child which cannot be ignored.” As a result, a genetic mother, who uses a gestational surrogate, can now have her name placed on the birth certificate through a post birth proceeding. Such proceeding does not need to meet the stringent requirements of an adoption (i.e. criminal background check, fingerprinting and a home study investigation).
Constitutionally and psychologically, this is a significant victory not only for mothers, but women as well.
Melissa B. Brisman is an attorney who practices exclusively in the field of reproductive law and is considered by her peers to be a leader in her profession. Ms. Brisman’s experience and qualifications are unparalleled. She employs an experienced and qualified staff of legal and administrative professionals and is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania. Ms. Brisman has a practice, Melissa B. Brisman, Esq., LLC, located in Montvale, New Jersey, offering a full range of legal services in connection with gestational carrier arrangements, ovum, sperm, and embryo donation, and adoption. In addition, Ms. Brisman is sole owner of Reproductive Possibilities, LLC. Reproductive Possibilities, LLC is an agency offering a donor record-keeping service which maintains contact information for intended parents and their anonymous ovum donors for a period of years following a donor arrangement. Reproductive Possibilities, LLC also facilitates gestational carrier arrangements. Ms. Brisman is also sole owner of Surrogate Fund Management, LLC, a company that manages escrow in connection with reproductive arrangements.
Melissa B. Brisman, Esq. LLC
One Paragon Drive, Suite 158
Montvale, NJ 07645
Reproductive Possibilities, LLC and
Surrogate Fund Management, LLC