Surrogacy Shouldn’t Block Adoption, Court Determines

New York Law Journal – April 10, 2014

A Queens man may legally adopt his husband’s biological twins even though they were born to a woman under a surrogacy agreement that is illegal in New York state, a Family Court judge determined.

Judge Barbara Salinitro (See Profile) ruled that the best interests of the twins is the most important consideration in weighing the adoption petition of a man identified in court papers as “J.H.-W.,” not that the surrogacy agreement that reulted in their birth is “void and unenforceable” under New York law.

A home study provided to the court showed that the children are “thriving” in the care of J.H.-W. and his same-sex spouse, “M.H.-W.,” the judge said.

“The court is not being asked to enforce the surrogacy contract that forms the basis for the adoption, nor does the relief sought include claims relating to the surrogacy agreement itself,” Salinitro wrote in Matter of J.J., A-19-20/14. “Rather, the proposed adoptive parent…wants desperately to have equivalent legal status as the birth parent, which is what the couple had always envisioned as they proceeded on their bumpy road towards starting a family together, and is prepared to assume the rights and responsibilities that accompany legal parentage.”

To that end, the judge continued, the surrogacy agreement with the woman who bore the children in Mumbai, India, in 2013 is of “no consequence” to the adoption proceeding in Queens.

“The court finds where a surrogacy contract exists and an adoption has been filed to establish legal parentage, such surrogacy contract does not foreclose an adoption from proceeding,” Salinitro wrote.

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