Known Donor Family Law New York – Protecting Lesbian Mothers

Known Donor Family Law New York is changing. 

Many lesbian couples look to known donor family law New York prior to choosing known donors to help them have their families.  In my legal practice, I have seen this number increase steadily over the last 10 years.  Reasons for choosing a known donor include giving children a link to their biological heritage, having access to specific medical histories and providing male influences in the lives of children born into these progressive families.

The law appears to be coalescing in favor of intended mothers and a recent Appellate Division case moves known donor family law in New York further in that direction.  Before discussing the new case, let me give you a brief history of existing known donor family law in New York.known donor family law New York

Existing Family Law Treatment

Brooklyn Family Court Judicial Hearing Officer (JHO) Harold Ross, in a decision titled The Matter of L., et. al, held that as long as uncertainty exists for LGBT couples who create their families with assisted reproductive technology (ART), with both anonymous and known donors, then second parent adoptions are the best way to secure those families from this uncertainty.

In the Matter of Brooke S.B. v. Elizabeth A.  C.C., a landmark decision released in August of 2016, the New York’s highest court overturned previous New York precedent that had torn families apart for decades and ruled that non-biological and non-adoptive parents did have standing to sue for custody and visitation in the New York family court system.  While this case did not specifically address the issue of a known donor’s rights to a child he helped come to be, it brought New York family law in line with many other states which recognize “de facto” parents for the purpose of custody and visitation and prioritizes the best interests of the child in making these critical decisions.

New Case Law 

This new known donor case, entitled In the Matter of Christopher YY v. Jessica ZZ and Nicole ZZ, New York’s Appellate Division, Third Department (whose jurisdiction covers matters derived in South Central New York State to North Eastern and Central Eastern Counties in New York) addressed the issue of a known donor who sought to have a paternity test ordered by a family court.  The family court agreed with the donor and ordered the testing.  The mothers filed an appeal and the result of that appeal was to overturn the lower family court’s decision to order paternity testing for two reasons, thus codifying new known donor family law in New York.

The first reason was the marital status of the mothers.  They were married when they planned on having the child and they had an informal agreement (one drafted and executed without the benefit of legal counsel) with their donor, something that all intended mothers should have with their known donor prior to insemination.  The court stated that there existed a “presumption of legitimacy of a child born to a married woman.”  Even if this presumption exists, the court must conduct a “best interests of the child” analysis before any paternity testing can be ordered.

known sperm donorsThe key question is whether the paternity testing is in the best interests of a child.  The court determined that the presumption existed regardless of the gender of the parents, a huge statement of support for lesbian couples across New York.  However, that presumption can be “rebutted” by a donor in certain circumstances.  The court looked at the facts of this case, the existence of an agreement in which the donor stated that he would not seek paternity, and the lack of a significant relationship between the donor and the child after the child’s birth. 

To determine whether the presumption of parentage that the court established for the non-birth mother could be rebutted, they applied the concept of “equitable estoppel,” which bars a legal claim by a party if that claim is inconsistent with a prior position taken by them and relied upon by the other party.  In this case, the prior position was outlined in the known donor agreement he signed with the mothers, that he would not attempt to establish paternity,  and his lack of a relationship with the child after her birth.  Equitable estoppel prevented the known donor from proving to the court that the paternity testing was in the best interest of the child.

What does this case mean for Known Donor Family Law New York? 

This case is certainly a step in the right direction.  But these cases are fact specific and unless there is a legal instrument, such as a step or second parent adoption order, the possibility of taking a party to court will always be a financially and emotionally time-consuming specter over a family.  Another benefit of a step or second parent adoption is that is clearly and indisputably terminates the rights of a known donor, making a claim such as the one made by the donor in this case, a nullity.

Known Donor Family Law New York is moving in the right direction.  If you are considering a known donor, you must also consider how best to secure your family from unwanted paternity or visitation suits.  For answers to your questions, please contact Anthony M. Brown at or visit

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New York Family Law, Matter of Brooke S.B.

Late August 2016 marked a turning point for New York family law and how it defines parents, particularly lesbian parents.

What the court decided – Up until this decision, many lesbian parents who had not adopted the biological children or their partners or spouses were considered legal strangers to the children that many of them had raised since birth.  Under previous New York family law, these non-biological and non-adoptive parents could not seek the legal system’s assistance in gaining custody, or even visitation, to the children who they helped to raise.

All that changed last month with a court case known as In the Matter of Brooke S.B. v. Elizabeth A.  C.C.  In this landmark decision, the court overturned previous New York precedent that had torn families apart for decades and ruled that non-biological and non-adoptive parents did have standing to sue for custody and visitation in the New York family court system.  This brings New York family law in line with many other states which recognize “de facto” parents for the purpose of custody and visitation and prioritizes the best interests of the child in making these critical decisions.remarkable parenting

What this decision does not address? – The court was careful to base its decision on the specific facts of this case, which included one very important element: the fact that the couple agreed in advance to the conception of the child.  What this means is that if a lesbian couple has children but the non-biological or non-adoptive parent entered the picture after the conception of the child, then she would not fall under the definition of a “de facto” parent as stated in this case.  Also, if the non-biological, non-adoptive parent did not consent to the conception of the child by clear and convincing evidence, she would be forestalled from seeking custody or visitation.

It is also critical to note that the court did not explicitly state that the non-biological, non-adoption mother was a legal parent of a child born to her spouse or partner for all purposes, just that she could seek custody and visitation if she had consented to the conception.  This case also did not explicitly address the notion of the marital presumption of parentage, which a mid-level appellate court has held not to apply to same-sex couples.  This concept holds that the spouse of a married woman is automatically considered the legal parent of any child she gives birth to.

Does this mean I do not have to adopt my partner or spouse’s child? – I do not believe that the court meant for this decision to be a substitute for second or step adoption.  Adoption is the one clear pathway to legal parentage and parentage includes much more that custody and visitation.  Adoption also ensures that a parent’s relationship to their child would be respected across the country and around the world.

For instance, if you are the non-biological, non-adoptive parent and you have a better health care plan at work, this decision would not mandate that an employer must put the child on your health insurance. Second or step parent adoption would, however, ensure that that the child would be protected in this situation.

Brooke S.B. was also silent on whether a legal relationship between a non-biological or non-adoptive mother would be recognized for the purposes of estate administration. This means if a legal parent dies without a Will, their children automatically share in that parent’s estate if they are married, or inherit the estate completely if the decedent spouse is not married.  Finally, the legal and emotional statement of securing your family through adoption resonates beyond just the family unit.  It establishes your family in the community, in your child’s educational institutions and, most importantly, in the eyes of the children with whom you are creating a legal family.

Brooke S.B. also fails to address how gay men can protect their families through surrogacy.  Adoption is still the best way in New York to create legal families established through surrogacy.

Brooke S.B. will undoubtedly protect many families from the horror of being torn apart because one parent was not recognized as a real parent. For that, New York family laws will be better and stronger for all families.  But this decision is not all-encompassing and when it comes to the protection of your family, the establishment of comprehensive legal parentage by a non-biological parent is the ultimate goal.  To accomplish that, a second or step-parent adoption is essential.

For more information about New York family law and the ramifications of the Brooke S.B. decision, contact Anthony Brown at or visit today.

Gay custody battles force law to define what a parent is

A spate of gay custody battles are forcing the law to reconsider what constitutes a parent, with one particular case in New York set to have major implications for many more LGBTI couples.

The New York Court of Appeals is to decide whether the ex-girlfriend of a child’s biological mother should have legal parenting rights – despite having never adopted the child in question, or been married to the biological mother in one a several gay custody battles that could define LGBT family law in New York and around the country.

Brooke Barone claims she acted as the child’s ‘Mamma B’ when her girlfriend Elizabeth Cleland gave birth after artificial insemination. But when the couple split up, Cleland reportedly denied Barone visitation rights to the child – which is what Barone is now fighting for in court. Cleland claims she does not feel safe leaving her child with Barone.

lesbian family law

drawing of a happy couple of lesbians and adopted child

Tangled gay custody battles

The argument against awarding parental rights outside of biology, marriage or adoption centers on the potential for opening up bogus parenting claims. These, lawmakers argue, could come from friends, nannies, or even abusive partners seeking to gain control and cause distress.

However, those in favor of broadening the definition of a parent point out heterosexual men have been recognized as parents without genetic or adoptive connections, in order to compel child support payments.

The legalization of same-sex marriage in the US has thrust the tangled legalities of same-sex families into the spotlight, with several similar cases currently being fought in other US states, including another typically gay-friendly state, Massachusetts. And in Canada, the premier of Ontario has pledged to change the law so that both parents in an LGBTI couple are immediately entered onto the birth certificate, hopefully avoiding gay custody battles. This is a huge change to the province’s current law, where a non-biological parent in a same-sex couple is forced to begin the lengthy and costly adoption process in order to be legally recognized.

Speaking to The Wall Street Journal, Columbia Law professor Suzanne Goldberg said that ‘It’s only an accident of law that leads one of those parents to be unrecognized [in these cases].’

New York decision to set precedent

Even when a partner has adopted the child, however, a biological parent looking to disavow their former partner of parentage has legal recourse – as a recent case involving a lesbian couple in Alabama showed. The Alabama courts were eventually obliged by the US Supreme Court to find in favor of the adoptive parent, however.

Click here to read the entire article. – June 5, 2016 by Laura Chubb

Estate Planning Trust – Does my family need one?

I get this question a lot, “Do I need an Estate planning trust?” The answer differs for every personal and family situation, but there are some critical reasons why an Estate Planning trust may be right for you.

Before understanding when an Estate Planning Trust is appropriate for you, it is important to understand exactly what they are. There are two types of Estate Planning Trusts, revocable and irrevocable, and two ways to create them, either in a Will, a testamentary trust, or as a standalone document.

Revocable Trusts – A revocable trust is executed during the lifetime of the Grantor, the person creating the trust, and is called an intervivos trust.  The Grantor often has controlling power over the assets in the trust during his or her lifetime.  Revocable trusts are tied to the social security number of the Grantor and provide the Grantor with specific control over the assets contained within the trust, including terminating the trust and transferring any trust assets back to the Grantor.  The most common reasons for revocable trusts are to bypass the probate process for passing assets upon the death of the Grantor and to provide for the management of assets that the Grantor may believe that they cannot manage due to planning , estate planning trust, glbt estate planning, lgbt estate planning, gay family law, wills, trusts

Irrevocable Trusts – An irrevocable trust may be created either during the life of the Grantor, an intervivos trust, or in the Grantor’s Last Will and Testament, a testamentary trust.  In the case of the latter, the trust becomes irrevocable upon the death of the Grantor.  The key difference between a revocable trust and an irrevocable trust is that the Grantor completely surrenders control over any assets contained in an irrevocable trust.  Irrevocable trusts also require separate tax ID numbers, and have separate tax filing requirements.  Reasons for creating an irrevocable trust include minimizing estate tax charges on assets passing to non-spousal beneficiaries, such as homes (Qualified Personal Residence Trusts – QPRTs) and life insurance proceeds (Irrevocable Life Insurance Trusts – ILITs).  The values of assets which pass through irrevocable trusts are not taxable in the Grantor’s estate; however, there may be a gift tax event which occurs at the time of the initial transfer of an asset into an irrevocable trust.

Other Reasons for an Estate Planning Trust – For Grantors who own real property in a state other than the state of their domicile, a proceeding called an “ancillary probate” is required.  This means that if a person lives in New York and owns real property in Florida, two probate proceedings must be brought: one in New York to pass their New York property and one in Florida to pass the Florida real property.  In order to avoid this unnecessary and expensive double probate process, the title to real property in Florida may be transferred into a New York revocable trust.  This transfer then negates the need for the Florida probate proceeding.  It is critical; however, to actually transfer the title of the Florida property into the New York trust and have that newly transferred title recorded in the appropriate Florida County Clerk’s office.  Simply creating the trust is not enough.

Children’s Trusts – The primary reason why people include an Estate Planning Trust in their Wills, a testamentary trust, is to provide for young children in case something were to happen to both parents before he children reach an age where they can responsibly manage their money.  Children’s trusts allow parents to name a trustee, or money manager, for the assets which will eventually pass to their children, to provide for unexpected circumstances such as drug or alcohol abuse of a child and to stretch out distributions of principal and interest over a controlled period of time.  It is important to note that a Children’s trust cannot name a guardian for the person of the child, only for the property of the child.  This personal guardianship designation can only be made in a Last Will and Testament.

If I have an Estate Planning trust, do I still need a Will? – In a word, yes!  The Estate Planning Trust should be an addition to a person’s estate plan, not a substitution for it.  To see a list of estate planning basics which all individuals and couples, with or without children, should have, visit

When you are considering an Estate Planning Trust, please consider me a resource. For more information the basics for estate planning for gay couples, contact Anthony M. Brown at Time for Families and speak to a specialist family lawyer to secure your and your family’s future.

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Two Moms Talk About Second Parent Adoption

Not all LGBT parents in the U.S. can put both parents’ names on their children’s birth certificate.  Second Parent adoption can help.

And even if they can, many lawyers still advise that gay couples go through a second parent adoption as a means to protect their parental rights to their children.

Brandy and Susan from The Next Family discuss their second parent adoption experience so other LGBT parents can gain some insight.

The moms explain the importance of second parent adoption by providing the example of traveling internationally to countries that don’t recognize same-sex marriage or families. By going through the process, step parent adoptions give both parents the same rights to their children thus protecting them in the U.S., overseas, and even in custody cases.second parent adoption

“And at the end of the day, I think it’s wise to do it,” Brandy said.

Though she does share her displeasure with the entire process that LGBT parents have to go through that straight parents do not:

“We fight so hard for our LGBT rights and we’ve gotten to this point and this place in our country…and [step parent adoptions] sort of takes you back. Like, really?”

Brandy and Susan explain the process that their family went through when it came to their step parent adoption. It involved finding a good lawyer, filling out an adoption application, and speaking with a social worker.

When speaking about the social worker experience, Brandy said, “They were asking us sort of ridiculous, in my opinion, parenting questions.” She also adds that you should prepare yourself for this experience which may be uncomfortable: “I think it was really insulting to me that they were asking her these questions and me these questions and I had had this child and we had together made this decision together to have this child.”

Following the social worker meeting, families will have to go to court to complete the adoption process.

For Susan’s court date, the judge asked her, “Why should I grant you this right to adopt this child?” Susan said she responded quite awkwardly with, “Well, I’m kind of doing a lot of mother things.” She was happy though with how the judge responded, “You’re the mother and that’s why I’m doing it.” Susan said she could tell that the judge thought that the entire process was also a “silly precursor” to establish her parental rights.

Click here to read the entire article.

By Alex Temblador – – April 15, 2016

Gay rights – Why religious freedom bills could be just the beginning of the gay marriage debate

Gay rights vs. religious protections feels like the social battle of the moment right now, and it might not go away anytime soon.

In the wake of the June Supreme Court ruling legalizing same-sex marriage, dozens of states have considered or are considering legislation to give Christians and other people protections from doing something that violates their religious belief. It’s got LGBT advocates playing whack-a-mole across the nation as they argue that these laws amount to sanctioned discrimination of gay rights.

Three battles in the South over gay rights in particular have made headlines. Mississippi recently passed a sweeping bill allowing  businesses, religious institutions and state government employees to refuse service to LGBT people. Georgia’s Gov. Nathan Deal (R) vetoed a bill aimed at protecting religious institutions from having to perform same-sex marriages. And then there’s North Carolina and its bill limiting public bathrooms and locker room access for transgender people, which is a whole other issue for another day.

We spoke to Rochelle Finzel,  director of the children and families program with the nonpartisan National Conference of State Legislatures to get a better feel for why this seems to be taking up so much oxygen now — and what could come next. It’s important to note that Finzel and her staff don’t take any positions on policy; rather they track the legislative trends related to family law. Our conversation has been edited for length and clarity.marriage equality

THE FIX: There’s a perception that laws protecting religious institutions and officials from having to perform same-sex marriages is a new phenomenon this year. But really, the 13 states that legalized same-sex marriage through state legislation included religious freedom protections too, right?

Finzel: That’s right. In some states that was the compromise; the only way they were going to get their legislation passed to legalize same-sex marriage was to make sure those religious officials were protected.

What’s happening now, after the Supreme Court ruling where now all states have to recognize same-sex marriage, I think it raised those same concerns of: How do we make sure the law is protecting those whose religious beliefs do not necessarily support same-sex marriage? So these conversations have been a little bit broader than just the solemnization question.

THE FIX: So you’re saying these new bills are controversial in part because they’re expanding beyond protecting religious institutions to how to protect the average person on the street who doesn’t agree with same-sex marriage for religious reasons? Is that a new debate?

Finzel: From my vantage point, that’s new.

The bills that have generated the most controversy and the legislation that ultimately most states, besides Mississippi, have  vetoed, that’s been where that controversy has arisen. And certainly where you see the business community weigh in.

It raises the question of: Are we then allowing discrimination if a person is able to deny services or benefits to someone based on their religious beliefs? We’re protecting one set of beliefs, but then is it discrimination on the other end? And that’s been the real question. But we are very early on in this conversation on gay rights.

THE FIX: How do you see this conversation evolving?

Finzel: This is new territory for states. They’re trying to think about the implications of same-sex marriage across a whole host of issues, from the religious protections as well as some of the family law. I think certainly the emphasis and focus right now is just on same-sex marriage and recognizing same-sex marriage.

The next piece will be, now that we have same-sex marriage and also have same-sex parents, what are the implications in terms of custody, parentage, paternity and all those related issues — child support, child custody, adoption.

THE FIX: When the Supreme Court legalized same-sex marriage in June, was your reaction like, ‘Oh man, get ready for this huge legislative battle in the states,’ or have all these developments surprised you?

Finzel: It may have happened more quickly than we had anticipated. But it certainly has been on our radar. We were thinking, ‘What will this do for family law?’ And I’m not so sure that anyone really has all of the answers to that question yet.

THE FIX: Why are bathroom bills happening in conjunction with all this?

Finzel: That’s a good question. Maybe it’s a question to pose to some of the advocates on these issues. Has that been part of their platform as well?

THE FIX: Is it fair to say the religious protection vs. gay rights discussion has been centered in the South, which tends to have a higher concentration of social and religious conservatives who don’t necessarily agree with same-sex marriage?

Finzel: I think it’s a discussion around the country. All states are — and especially where the Supreme Court ruling was the first time they had to recognize same-sex marriage — sort of deer in the headlights, like, ‘Okay, what do we do?’ And I would say that’s across the board.

There are some that are looking at family law, some looking at how we change the language of our statutes so they reflect a more gender-neutral portrayal of family structures. We see more activity in the Republican states, but it’s not that it hasn’t been introduced or discussed in Democratic states. Family issues are not partisan.

by Amber Phillips, Washington Post – April 13, 2106

Click here to read the entire article.

Adoption For Gay Couples is Still the Best Answer – The Message of Matter of Kelly S. v. Farah M.

Does this case render adoption for gay couples as unnecessary or is it simply an affirmation of another state’s more progressive parentage laws?

There has never been a stronger case for adoption for gay couples than Matter of Kelly S. v. Farah M.  I reported this week about a case out of the Second Department Appellate Division in New York affirming a Suffolk County Family Court decision granting visitation to a non-biological lesbian mother. At first glance, this appears to create new law in New York, doing away with previous NY law holding that a non-biological mother does not have standing to seek custody or visitation.  But on further inspection, its true message is that the only way to avoid costly and bitter court battles is through adoption for gay couples.

adoption for gay couples

Facts of the case – Kelly Steagall and Farah Martin met and entered into a relationship in 2000 and became registered domestic partners in California in 2004. They were legally married there in 2008.  Ms. Martin conceived two children through artificial insemination who were born in March of 2007 and April of 2009.  The couple used the same known donor for each child and, instead of using a doctor or fertility clinic to assist with the insemination, they privately inseminated at home.  After moving to New York in 2012, the couple separated in 2013 and Kelly moved to Arizona.  Kelly filed a visitation petition in Suffolk County New York in 2014.

Ms. Martin objected to Ms. Steagall’s status as a legal parent stating that New York law did not support her position and, in what the court saw a self-serving move, sued the known donor to establish that he was the other “true” parent.

What the court said – Appellate division Judge Roman, in her affirmation of the lower Family Court’s ruling, stated that because the couple was in a registered domestic partnership and subsequent marriage in California when the children were born, California law, which is far more progressive that New York family law, should govern and therefore, Ms. Steagall’s parentage could be recognized under California law.

New York Law – In New York County, Surrogate Judge Kristin Booth Glen, in a case entitled In the Matter of Sebastian, discusses the issue of establishing parental rights for a non-biological parent specifically.  The case involves married lesbian couple who used an anonymous sperm donor to have a child. Glen concludes, when discussing the non-biological mother’s relationship with the child that, “the only remedy available here that would accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law (“DRL”) § 111 et seq.”  Glen further states, “that a judicial order of adoption in one state must be afforded full faith and credit in every state, and that there can be no “public Policy” exception to that mandatory recognition…”.

This case essentially relies on a marital presumption of parentage. In California, a registered domestic partnership at the time was viewed for all intents and purposes as a marriage.  While it is true that many states have what is called a “martial presumption of parentage,” it is applied differently in different states.  In New York State, there is specific case law that holds that the marital presumption of parentage does not apply to same-sex couples.  That case is called “Matter of Paczkowski v. Paczkowski.”  In that case, the appellate division of the Second Department of New York, the same court that decided the Matter of Kelly S. v. Farah M., held that the “presumption of legitimacy… is one of a biological relationship, not a legal status.”

In essence, the court says that a marriage does not create a legal right between a non-biological parent and a child.  While it may be an indication of intent to be a parent, as would a non-biological parent’s name on a birth certificate, the only way to actually create the legal relationship that guarantees the security that all same-sex families need, is through adoption for gay couples, and in some states, a parentage order.  Unfortunately, New York currently does not have the capacity to issue a parentage order but there is legislation in committee in Albany that may change that.

How does this case affect Gay couples? – The take away from this case may not be what many of us in the LGBT legal community want, particularly in New York. While the language in the decision is expansive and is certainly heading in the right direction, it does not change the law in New York.  Had Kelly Steagall and Farah Martin lived in New York, conceived and gave birth to their children in New York, the outcome of this case could have been vastly different and Kelly Steagall would still, under current New York law, have had to fight in the courts for visitation to the children she had helped to raise since their birth.  No one factors into their family equation to emotional and financial costs of fighting to see the children to whom they area  parent, nor should they.  But the reality of the situation is much more nuanced.  If you are a New York resident, second or step parent adoption for gay couples is the best and only way to ensure that the emotional and financial costs of litigation can be avoided.

Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, has extensive experience in helping same-sex couples through the adoption process, having gone through the process himself. If you have yet to create a legal relationship with your child or children, call 212-953-6447 or email Anthony at

NY Appeals court: Divorcing lesbian mother has parental rights

A state appeals court has upheld a Suffolk Family Court decision finding that two women who are divorcing are the legal parents of their children, including the one who did not give birth to them.

The unanimous decision for the Appeals court, Appellate Division’s Second Department, written by Justice Sheri Roman, finds that Kelly Steagall, 47, now of Arizona, has the right to seek visitation of the children born during her marriage to Farah Martin, 40, who grew up in Nesconset.

As in last year’s ruling by Suffolk Family Court Judge Deborah Poulos, Roman noted that the issue is affected by many factors, including the validity of California law in New York, whether a sperm donor who was a friend to the couple has any parental responsibilities and how the two women raised the children when they were together.

Steagall and Martin had three kids together. Steagall gave birth to the first one, and Martin carried the other two.

The couple later moved to Long Island and then separated. Martin went to Family Court seeking to deny Steagall’s parental rights to the younger two children, arguing that because Steagall never adopted them, an informal artificial insemination process left the children’s legal parentage in doubt.

Roman’s decision said that makes no difference.marriage equality

“The parties made an informed, mutual decision to conceive the subject children via artificial insemination and to raise them together, first while in a registered domestic partnership in California and, later, while legally married in that state,” Roman wrote. “Additionally, the children were given [Steagall’s] surname, [Steagall] was named as a parent on each birth certificate and the parties raised the children from the time of their births … until the parties separated.”

Steagall said she is grateful for the decision, but worries the protracted legal battle and her inability to see her children regularly has damaged her relationship with them.

“There was borderline parental alienation going on, and I feel that’s still going on,” she said. “My kids will barely speak to me on the phone.”

Steagall’s appellate attorney, Christopher Chimeri of Hauppauge, said the ruling now enables Steagall to have a fair fight for visitation. He said courts are going to see more such cases.

“The law is, in effect, catching up to how families are formed and maintained,” he said.

by Andrew Smith, April 8, 2016 –

Click here to read the entire article.

New York Surrogacy – The State of the State

Many LGBT individuals and couples are turning to surrogacy to have their families. New York surrogacy is complicated and evolving, but there is hope on the horizon.

Surrogacy is defined and the act of a woman, altruistic in nature, of gestating and giving birth to a child with the intention of giving that child to the intended parent or parents. There are two types of surrogacy: traditional and gestational. Traditional surrogacy is when the surrogate mother is also the egg donor and the child is biologically related to her. With a gestational surrogacy, a fertilized egg is implanted into the womb of the surrogate and she is not biologically related to the child. Most surrogates today are gestational surrogates.

Currently in New York State, The Domestic Relations Law, Article 8, Section 123 essentially criminalizes compensated New York surrogacy. The law states that no person may request, accept or facilitate the receipt of compensation for a surrogacy arrangement. The law does, however, allow for “altruistic” surrogacy, or non-compensated surrogacy, and authorizes limited reimbursement payments for medical and legal costs related to the surrogacy. But the law does not stop there. Lawyers who facilitate compensated surrogacy agreements can lose their licenses and be convicted of a felony. Monetary sanctions from $500.00 to $10,000.00 are also possible. This does not mean that gay individuals and couples in New York cannot enter into a compensated surrogacy contract. It means that the surrogate cannot live, or more importantly give birth, in New York State, forcing them to incur extra costs of traveling to other states in order to support their surrogate mother.

gay surrogacy

The good news is that a group of advocates and attorneys have created a solution to this problem. It is called the Child Parent Security Act (CPSA), a law that would not only legalize and regulate compensated New York surrogacy, but would also allow for the issuance of parentage orders to secure the parental rights of the non-genetically related parent. Currently, non-genetically related parents must have a second or step parent adoption to protect their families. As of this post, the CPSA is stuck in committee in the New York legislature, held back due to certain legislators’ misunderstanding of surrogacy. Many of these legislators are staunch supporters of the rights of the LGBT community; however, surrogacy for them is a “hot button” issue, as it currently is in Europe.

If you are thinking about surrogacy to have your family, there are a few legal issues you should know about prior to signing any contracts. The most important is that compensated surrogacy is governed by the laws of the state where your surrogate lives, or where she gives birth. It is critical to be aware of these ever changing laws and make sure that the current law is incorporated into your gestational carrier (GC) contract. These contracts will contain such other provisions as: a mandate for medical and psychological testing, details of conception and abstinence for the GC and her partner or spouse, termination of GC’s parental rights, provisions for death or divorce of intended parents (IPs), payment of expenses, compensation, review of GC’s health insurance, breach and remedy procedures, selective reduction provisions to name just a few. These contracts are purposefully dense as their purpose is to cover any and all possible situations that may arise in the relationship IPs will have with their surrogate. It is critical that you have an attorney who is versed in Assisted Reproductive Technology (ART) law to assist you in the drafting and review of your surrogacy contract.

Finally, for those considering New York surrogacy, make sure to read through the Men Having Babies Framework of Ethical Guidelines for Intended Parents, an invaluable document created to assist IPs in navigating the process with dignity and awareness of your surrogate mother’s needs through the process. If you are looking for an attorney in New York who specializes in helping same sex couples have families, call Anthony M. Brown, head of Nontraditional Family and Estates division of Albert W. Chianese & Associations, at 212-953-6447 or email questions to

LGBT Parental Rights: A new family form but an old question

LGBT parental rights in a changing world.  Will the law catch up to our families?

Lesbian couples raising children conceived through assisted reproduction made front-page news last month when the Supreme Court rebuked Alabama’s refusal to recognize the Georgia adoption decree that made two women legal parents of the couple’s three children. On Tuesday, the Maryland Court of Appeals will take up a related issue.  LGBT parental rights are in the news.

In 2009, after nine years together, Michelle Conover, a transgender man now known as Michael Conover, and Brittany Eckel decided to have a child. They used Shady Grove Fertility Center, selecting semen from an anonymous donor chosen for characteristics similar to Conover. Eckel was inseminated, and, in April 2010, Jaxon was born and given Conover’s last name. Conover was present at Jaxon’s birth and was his stay-at-home parent. When Jaxon was 5 months old, the couple married. About a year later, they separated, although they continued to raise Jaxon together until Eckel allegedly cut off Conover’s access. In their subsequent divorce action, Conover sought visitation rights, but the trial court and the Court of Special Appeals ruled that he was not Jaxon’s legal parent and, as a third party, not entitled to continue his relationship with him.

lesbian family law

The family form is new, but the legal question in the case is not: Who is a child’s legal parent? Extramarital affairs and nonmarital births have always provided challenges for courts grappling with that question, but assisted reproduction has added another dimension.

When married heterosexual couples with an infertile husband began using donor semen in the mid-20th century, some courts called the practice adultery, and legal authorities opined that the child was “illegitimate.” The result was statutory reform in many states, including Maryland, delineating that a child conceived through a married woman’s insemination with the consent of her husband is the “legitimate” child of both of them.

Several state courts have read those statutes to apply to the child of a married lesbian couple. But what about Jaxon, whose parents were not married when he was born? Unmarried couples — gay and straight — now regularly use assisted reproduction. The District has recognized since 2009 that a child born to a married or unmarried couple that uses donor insemination is the legal child of both members of the couple. Had Jaxon been born in a D.C. hospital, Eckel and Conover would both be listed as his parents on his birth certificate.

Washington Post – April 3, 2016, by Nancy Polikoff

Click here to read the entire article.