Sunday, April 19, 2009


Legal Quandary of the Day: Adopting your own son

A Manhattan surrogate judge has granted an adoption petition filed on behalf of a woman whose donated egg was fertilized and then implanted in her same-sex partner.

Although the couple's Dutch marriage is recognized by New York and the donor's genetic relationship to the 15-month-old boy is "unquestioned," the donor filed for adoption in order to safeguard her parental rights under federal law and in the states that do not recognize the same-sex marriage.

—Mark Fass reporting in "Same-Sex Partner Who Is Child's Genetic Mother Granted Adoption"

The judge was flummoxed over the best course to take to guarantee the rights of the genetic mother—

The issue, Surrogate Kristin Booth Glen wrote in Matter of Sebastian (pdf), 38-08, is whether adoption is appropriate and permissible when the petitioner was not only legally married to the child's mother at conception and birth, but in fact is the child's genetic mother.

"[N]o reported decision, in this or other states, has discussed or determined the parentage of a child's gestational and genetic mothers in a proceeding which involves no dispute between the parties," she wrote.

The surrogate concluded that adoption may not be a perfect solution, but it is the best one.

"Sebastian's genetic mother has other potential legal avenues: first, to be listed on Sebastian's birth certificate; second ... to execute a statutorily prescribed acknowledgment of paternity [filiation]; and third, to obtain a judicial order of filiation," Glen wrote.

However, she added, the Surrogate Court lacks the jurisdiction to grant any of those three options, and only the filiation order would likely be subject to "full faith and credit."

Therefore, the surrogate concluded, the donor's "petition to adopt Sebastian is ... granted, and, as a matter of law, in addition to her own genetic and loving connection, she is accorded all the rights and responsibilities appurtenant to the relationship of parent to her son."

The legislatures of the 50 States need to get to work on this. It will give them something to think about.


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