T.V. v. New York State Department of Health
929 N.Y.S.2d 139
N.Y. App. Div.2011Background
- Genetic mother, after hysterectomy, sought to have a biological child with genetic father via gestational surrogacy carried by gestational mother (NGC).
- Gestational mother carried the embryo created from the genetic mother’s eggs and genetic father’s sperm; no compensation was paid for surrogacy.
- Birth occurred May 1, 2009; DOH birth certificate identified gestational mother as mother, no father listed.
- Plaintiffs filed suit seeking declaration that genetic mother is the child’s legal mother and to amend birth certificate; also challenged certain surrogacy-related statutes as unconstitutional.
- Supreme Court denied preliminary relief and later granted order of filiation recognizing genetic father; amended complaint sought maternity declaration and constitutional challenges.
- Court held: issues involve rights to declare maternity and the constitutionality of related statutes; prior opinions in Doe, Arredondo, H.M., and McDonald inform authority to issue order of maternity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can genetic mother be declared the legal mother without adoption? | Genetic mother should be recognized as legal mother under statute and common law. | Birth mother by gestation is legally the mother under Public Health Law; no maternity declaration available. | Yes; court held viable maternity declaration without adoption. |
| Are Family Court Act §§517, 542 and DRL art 8 unconstitutional as applied? | Gender-based classifications violate equal protection and due process. | Statutes serve legitimate objectives; classifications are permissible. | Second cause of action stated a valid constitutional challenge; reversed dismissal on that ground. |
| Does Public Health Law authorize birth certificate amendments without adoption? | Order relating to parentage suffices to amend birth certificate; adoption not required. | Adoption or equivalent process required; statutes rely on traditional maternity. | Yes; Public Health Law § 4138(b) allows amendment upon a judgment/order relating to parentage, not only adoption. |
Key Cases Cited
- Green v. Montgomery, 95 N.Y.2d 693 (2001) (concurrent jurisdiction of Supreme Court with Family Court; original appellate authority over parentage)
- Kagen v. Kagen, 21 N.Y.2d 537 (1968) (authorizes issues involving parentage where no explicit statutory provision exists)
- McDonald v. McDonald, 196 A.D.2d 7 (1994) (gestational scenarios; supports declaration of natural mother when genetic link shown)
- Johnson v. Calvert, 5 Cal.4th 84 (1993) (intent test; genetic mother recognized as natural mother under reliance on appropriate standards)
- Matter of H.M. v E.T., 14 N.Y.3d 527 (2010) (Family Court has authority to determine whether a female is a child’s parent; informs concurrent jurisdiction)