By Brendan Pierson, New York Law Journal, August 15, 2011

A unanimous state appeals panel has reinstated a lawsuit against the Department of Health brought by two couples involved in a surrogate pregnancy agreement seeking to declare parts of New York’s Family Court Act and Domestic Relations Law unconstitutional.

Reversing a lower court ruling in T.V. v. New York State Department of Health, 6557/09, Justices Leonard B. Austin (See Profile), Mark C. Dillon (See Profile), John M. Leventhal (See Profile) and Cheryl E. Chambers (See Profile) of the Appellate Division, Second Department, found that the plaintiffs, who were not named, had successfully made a case challenging the state laws.

The suit concerns an agreement under which one woman, referred to as the gestational mother, agreed to carry the biological child of her friend, referred to as the genetic mother, and the genetic mother’s husband. The genetic mother could not carry the child because of a prior hysterectomy. The agreement was oral and there was no compensation.

When the child was born, the state Department of Health issued a birth certificate listing the gestational mother as the mother and listing no father. The gestational mother and her husband had already filed an action in Nassau County Supreme Court seeking a declaratory judgment that the biological parents were the parents.

Justice Thomas A. Adams granted their request as to the biological father, but not as to the mother, saying the court had no authority to issue an order of filiation declaring motherhood.

The plaintiffs filed an amended complaint asking the court to declare unconstitutional §§517 and 542 of the Family Court Act, which allow courts to issue orders determining the paternity, but not the maternity, of children; and Domestic Relations Law Article 8, which forbids surrogacy contracts.

The plaintiffs argued that the genetic mother’s constitutional right to equal protection had been violated because while she and her husband were identically situated, he had been named as the father but she had not been named as the mother. They also argued that if the Domestic Relations Law was read to presume that the gestational mother of a child is always the mother, it would violate the biological mother’s due process rights.

The Department of Health moved to dismiss, countering that under the state’s public health law, the “woman who actually gives birth to the child is the mother” under all circumstances, and said that the Family Court Act does not give the court authority to issue orders granting maternity rights to someone else.

The agency argued that the Family Court Act and Domestic Relations Law did not violate the equal protection clause of the Constitution because the statutory scheme was based on biological differences between men and women.

Opposing the motion to dismiss, the plaintiffs said that at the time the statutory scheme was put into effect, surrogate motherhood was not possible and that the law could therefore not be read to apply to their situation.

In January 2010, Justice Adams granted the Department of Health’s motion to dismiss, ruling that the plaintiffs had failed to state a cause of action. He noted that the Legislature had failed to contemplate surrogate births and only the Legislature could do so now.

He also said that “an alternative remedy exists in the form of an expedited adoption, which, notably, was capable of being completed far more expeditiously than this action.”

But the Second Department panel saw the issues differently.

Writing for the court, Justice Austin noted that the legislative task force on biological ethics issues that had recommended the Domestic Relations Law provision banning surrogacy contracts had later issued a report in which it said that “if both the genetic mother and the birth mother agree, after the child is born, that the genetic mother should be recognized as the child’s sole legal mother, the law should provide a mechanism for achieving that result efficiently, without the need for a formal adoption proceeding.”

The panel also noted two previous cases—one in Queens Supreme Court, Arredondo v. Nodelman, 163 Misc. 2d at 758 (1994), and one in Manhattan Supreme Court, Doe v. New York City Board of Health, 5 Misc. 3d at 425 (2004)—in which the court granted parenthood to the genetic mother under nearly identical circumstances.

“The factual similarities between Arredondo and Doe, on the one hand, and the present matter, on the other, warrant the same conclusion,” Justice Austin said.

“Significantly, although there is no statutory provision providing for a declaration of maternity, there is also no provision prohibiting such declaration,” he said. “Furthermore, the Domestic Relations Law does not limit the parties to a formal adoption proceeding as suggested by the Supreme Court here. Instead, the Domestic Relations Law simply provides that the gestational carrier’s participation in a surrogate parenting contract should not be held against her.” Justice Austin also said that adoption was not a suitable alternative remedy.

“Although adoption, the legal process by which a parent/child relationship is created where none previously existed… remains an ‘alternate remedy,’ to argue that the Genetic Mother was adequately protected based on this alternative underestimates the hardships of adoption,” he said. “Furthermore, the Supreme Court’s suggestion that adoption was a suitable course in this situation does not take into consideration that there is already a preexisting relationship, a biological link, between the Genetic Mother and her child which cannot be ignored.”

He said the legality of the agreement between the two women was irrelevant because the case did not require the court to resolve any dispute over the agreement.

“Moreover, given that there is no potential conflict over the custody and care of the child, the validity of the underlying contract is immaterial to this case, as the Supreme Court was not being asked to enforce such a contract,” he said. Finally, he said that the plaintiffs had successfully stated a claim challenging the constitutionality of the state law. “The issue here is not, as the Department of Health contends, whether there is a distinction between males and females in the birth process, as there most assuredly is one,” he said. “Rather, the issue as framed in the amended complaint is whether there is an impermissible gender-based classification between parents after the birth of the child.”

Melissa B. Brisman represented the genetic parents.

“This is a landmark ruling and a victory for reproductive rights,” she said. The constitutional issues raised by her clients are now moot, she added, since the court found that the statutes would be unconstitutional if read the way the lower court read them, but not under the panel’s interpretation.

Denise E. Seidelman and Nina E. Rumbold of Rumbold & Seidelman represented the gestational mother and her husband. “We are very gratified that the court agreed that there is a constitutional mandate to allow genetic mothers the same opportunity as genetic fathers to prove their parenthood,” Ms. Seidelman said in a statement. “This decision will have an enormous practical and positive impact because genetic mothers of children born through surrogacy can now quickly, easily and economically obtain an order declaring their legal maternity.”

Alison Nathan, special counsel to the office of tthe Solicitor General, and Assistant Solicitor General Sudarsana Srinivasan argued for the Department of Health.