TN 18 (02-17)

PR 00905.033 New Jersey

A. PR 17-013 Eligibility for Child’s Benefits Based on the Record of the NH Who Had Entered into a NY Marriage with the Claimant’s Birth Mother Before the Claimant Was Born

Date: November 1, 2016

1. Syllabus

The number holder (NH) and spouse married in New York in December 2011 and the Claimant was born in March 2013 in New Jersey. The NH was domiciled in New Jersey when the Claimant’s application was filed; therefore, we look to New Jersey intestacy law to determine whether the Claimant can be considered to be the NH’s child under the Act. In February 2007, New Jersey enacted a civil union law with the intention of providing same-sex couples with all the rights and benefits that married couples enjoy. The New Jersey Civil Union Act (NJCUA) specifically provides that the rights of civil union couples, with respect to the child of whom either becomes the parent during the term of the civil union, shall be the same as those of a married couple with respect to a child of whom either spouse or partner in a civil union couple becomes the parent during the marriage. At the time of the Claimant’s birth, New Jersey recognized out-of-state same-sex marriages as civil unions. The NH appears to have full, contemporaneous knowledge of the artificial insemination, indicating consent. Further, the NH recognizes the Claimant as her child and is listed as the second parent on the Claimant’s birth certificate and the claimant and the NH have lived together since the child was born. Thus, any rights accorded the NH and spouse would be comparable to those of a married couple with respect to a child of whom either spouse became the parent during the marriage. It is our opinion that under the intestacy laws of New Jersey, the Claimant could inherit property from the NH as her child. If the Claimant meets other eligibility requirements, he would be entitled to child’s benefits as the child of the NH.

2. Opinion

QUESTION PRESENTED

Whether L~ (the Claimant), the biological child of A~ (A~), is entitled to child’s benefits on the record of A~’s same-sex partner, J~, the number holder (NH).

OPINION

It is our opinion that under the intestacy laws of New Jersey, the Claimant could inherit property from the NH as her child. Thus, if the Claimant meets other eligibility requirements, he would be entitled to child’s benefits as the child of the NH.

BACKGROUND

You have advised us that the NH has been entitled to social security disability benefits since August 2008. A certificate of marriage indicates that she and A~ were married on December XX, 2011 in B~, NY. The certificate lists a Florida residence for both parties.

The NH and A~ stated as follows: The couple resided in Florida from June 2012 to January 2013. While living in Florida, the couple sought to have a child via artificial insemination by an anonymous donor. The couple obtained sperm donations from multiple anonymous donors. The artificial insemination was performed under the supervision of a doctor at the Florida Women’s Clinic and a supervising physician’s assistant. The physician at the clinic was different on different visits.

The NH and A~ also stated that the artificial insemination procedure took place at their home in Florida. The couple “had to sign paperwork.”1 The couple has contracts from each sperm donor indicating that the donor does not want any legal rights to the child. The couple does not want to disclose this information to third parties. The NH and A~ did not have a written contract with the Florida Women’s Clinic.

In January 2013, while A~ was pregnant, the NH and A~ moved from Florida to New Jersey, where they currently reside. A~ continued prenatal care at St. Peter’s Medical Clinic. The Claimant was born at St. Peter’s Hospital in M~, New Jersey on March XX, 2013. The birth certificate lists A~ and the NH as the Claimant’s parents. The NH, who states she wants to support the Claimant, lives with him and A~.

On May XX, 2013, the NH filed an application for the Claimant to receive child’s benefits on her social security record.

ANALYSIS

Federal Law

For purposes of child’s benefits under the Social Security Act (Act), a “child” is defined as the child, legally adopted child, stepchild, or in limited circumstances, grandchild of an insured individual. Sections 202(d), 216(e) of the Act, 42 U.S.C. §§ 402(d), 416(e).

Subsection (h)(2)(A) of section 216 provides that in determining whether an applicant is the child of an insured individual for purposes of the Act, the Commissioner shall first apply the law governing the devolution of intestate personal property by the courts of the state in which the insured individual is domiciled at the time the applicant files the application. Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A).2 The NH was domiciled in New Jersey when the Claimant’s application was filed. Therefore, we look to New Jersey intestacy law to determine whether the Claimant can be considered to be the NH’s child under the Act.

New Jersey Law

Under New Jersey intestacy law, in the absence of a surviving spouse or domestic partner, the decedent’s property passes to his “descendants.” N.J. Stat. Ann. § 3B:5-4(a) (West 2016). A descendant of an individual is defined as all of the individual’s “progeny of all generations, with the relationship of parent and child at each generation being determined by the definition of child contained in this section and parent contained in [N.J. Stat. Ann. § 3B:1-2].” N.J. Stat. Ann

§ 3B:1-1 (West 2016). A child is defined as the natural or adopted child, entitled to take by intestate succession from the parent whose relationship is involved, to the exclusion of stepchildren, grandchildren, or any more remote descendants. N.J. Stat. Ann § 3B:1-1 (West 2016). A parent is defined as any person who is entitled to take a share of the estate if the child, natural or adopted, dies without a will, and it excludes stepparents and grandparents. N.J. Stat. Ann § 3B:1-2 (West 2016).

For the purposes of establishing a parent-child relationship in intestacy proceedings, the New Jersey Parentage Act (NJPA) guides New Jersey courts. N.J. Stat. Ann. § 3B:5-10 (West 2016), see N.J. Stat. Ann. §§ 9:17-38 et seq. The NJPA defines the parent and child relationship as the “legal relationship existing between a child and the child’s natural or adoptive parents, incident to which the law confers or imposes rights, privileges, duties and obligations.” N.J. Stat. Ann. § 9:17-39 (West 2016). It further states that the “parent and child relationship” includes the “mother and child relationship and the father and child relationship.” Id.

In February 2007, New Jersey enacted a civil union law with the intention of providing same-sex couples with all the rights and benefits that married couples enjoy. The New Jersey Civil Union Act (NJCUA) specifically provides that “[t]he rights of civil union couples, with respect to the child of whom either becomes the parent during the term of the civil union, shall be the same as those of a married couple with respect to a child of whom either spouse or partner in a civil union couple becomes the parent during the marriage.” N.J. Stat. Ann. § 37:1-31(e) (West 2016). The NJCUA further provides that whenever any law, rule, regulation, or judicial or administrative proceeding references “marriage,” “husband,” “wife,” “spouse,” or other words connoting a specific marital relationship, the word shall include civil union partners pursuant to the provisions of the NJCUA. N. J. Stat. Ann. § 37:1-33 (West 2016).

The NH and A~ married in New York in December 2011.3 Claimant was born in March 2013. At the time of the Claimant’s birth, New Jersey recognized out-of-state same-sex marriages as civil unions. Recognition in New Jersey of Same-Sex Marriages, Civil Unions, Domestic Partnerships and Other Government-Sanctioned, Same-Sex Relationships Established Pursuant to the Laws of Other States and Foreign Nations, N.J. Att’y Gen. Op. 3-2007 (Feb. 16, 2007), available at http://www.nj.gov/oag/newsreleases07/ag-formal-opinion-2.16.07.pdf (Formal Opinion 3-2007). See POMS GN 00210.004.D New Jersey; GN 00210.003.A, B.5 New Jersey (From February 19, 2007 through October 20, 2013, New Jersey recognized same-sex marriages from other states as civil unions).4 Thus, any rights accorded the NH and A~ would be comparable to those of a married couple with respect to a child of whom either spouse became the parent during the marriage.

New Jersey law does not explicitly define the term “natural” with reference to either the child or the parent. However, New Jersey courts have routinely used the term “natural” to mean “biological.” See e.g., Matter of Baby M., 537 A.2d 1227 (N.J. 1988) (case involving parental rights of three parties - child’s “natural” father, “natural” mother and wife of the “natural” father); Matter of Adoption of Two Children by H.N.R., 666 A.2d 535 (N.J. Super. A.D. 1995) (in case involving adoption of child by same-sex partner of biological mother, court used “natural” and “biological” interchangeably). Thus, we do not believe that the Claimant could be termed the “natural” child of the NH, or establish that he is the NH’s natural child under any provision requiring a biological relationship to the mother. (For example, the Claimant would not qualify under the NJPA provision providing that the parent and child relationship between a child and the child’s natural mother may be established by proof of the mother having given birth to the child. N.J. Stat. Ann. 9:17-41(a)).

The NJPA also includes New Jersey’s artificial insemination statute. That statute states in relevant part:

If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived.

N.J. Stat. Ann. § 9:17-44(a).

Before the enactment of the NJCUA, the New Jersey Superior Court held that the artificial insemination statute could be read in a gender-neutral way so as to encompass same-sex partners. See In re Robinson, 890 A.2d 1036 (N.J. Super. Ct., Chancery Div. 2005). In Robinson, the court held that, under the artificial insemination statute, the same-sex partner of the birth-mother, who had conceived via artificial insemination, would be presumed to be the parent of that child in the same way that the husband of a birth mother who had conceived via artificial insemination would be presumed to be the father. Robinson, 890 A.2d at 1042. The court stated that an “individual seeking equal treatment under the Artificial Insemination statute must show indicia to be a spouse and to be a parent to the child.” Id. The court noted that the couple had entered into a domestic partnership under New York law and, of particular significance, had been legally married in Canada prior to the conception of the child. Robinson, 890 A.2d at 1041.

Robinson appears to remain the only New Jersey case to have addressed this narrow issue involving the parentage of a child conceived by artificial insemination within the context of a same-sex union. However, following the enactment of the NJCUA, the Appellate Division of the New Jersey Superior Court questioned the Robinson decision. In re T.J.S., 16 A.3d 386 (N.J. Super. Ct. App. Div, 2011), aff’d 54 A.3d 263 (N.J. 2012). In T.J.S., the plaintiffs were an opposite-sex couple who had a child born via a surrogate gestational carrier with the husband’s sperm and a donor egg. The court found that the NJPA provided for a declaration of maternity only to a biologically- or gestationally-related female and required adoption to render an infertile wife the legal mother of a child biologically related to the husband and an anonymous ovum donor who was born to a gestational carrier. Id. In finding that the artificial insemination statute could not be used to confer parentage in the circumstances of the T.J.S. case, the court held that Robinson did not suggest to the contrary and was not analogous to the circumstances of the T.J.S. case. T.J.S., 16 A.3d at 396, n.11. The Court noted that in Robinson, the couple mirrored the situation articulated by the Legislature in the Artificial Insemination Statute, save for the gender of the non-gestational partner. The couple, in a relationship equivalent to marriage (citation omitted), was unable to have a child through “traditional” means. Accordingly, the gestational partner was artificially inseminated by the sperm of a donor with the consent of her partner. The resulting child was thus biologically related to the gestational partner. Most important to the present circumstances, a third-party gestational carrier, and her accompanying rights, were not involved.

T.J.S., 16 A.3d at 396, n.11. Nonetheless, the court went on to state that, in its view, the Robinson court erred by relying on a “best interest” standard in deciding the issue of parentage. And, it expressed no view as to whether the same result could have been reached by a different analysis. Id.

Further, in 2011, a superior court held that the artificial insemination statute providing for the absence of parental rights and responsibilities of a donor of semen did not apply where there was no physician involved in the insemination process. E.E. v. O.M.G.R., 20 A.3d 1171 (N.J. Sup. Ct., Chancery Div. 2011). In that case, the mother, a single woman without a partner, wished to have a child. The mother and biological father of the child conceived through a self-administered “artificial insemination” procedure. The biological father attempted to surrender his parental rights. Because the parties had not strictly complied with a provision of the artificial insemination statute, that statute did not apply to relieve the father of his rights and responsibilities under the law. E.E., 20 A.3d at 1176-77.

While neither T.J.S. nor E.E. are analogous, and, even if Robinson could still be considered to be good law, it cannot be said that the NH and A~ meet the criteria of Robinson or of the artificial insemination statute. Notably, unlike the parents in Robinson, the evidence made available to us does not clearly indicate that the NH and A~ conceived the Claimant through artificial insemination under the supervision of a licensed physician. See N.J. Stat. Ann. § 9:17-44(a) (If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived). Although the couple stated that the artificial insemination was performed under the supervision of a doctor at the Florida Women’s Clinic, the couple also stated that the artificial insemination procedure took place at their residence, with no evidence that a doctor was present. Consequently, even assuming the artificial insemination statute is applicable to a same-sex couple, it does not appear that the requirements of the artificial insemination statute are met.

Next, we turn to whether any presumptions of parentage would be applicable to New Jersey same-sex couples. As noted above, the NJCUA specifically provides that “[t]he rights of civil union couples, with respect to the child of whom either becomes the parent during the term of the civil union, shall be the same as those of a married couple with respect to a child of whom either spouse or partner in a civil union couple becomes the parent during the marriage.” N.J. Stat. Ann. § 37:1-31(e) (West 2015). Under New Jersey law, a man is presumed to be the biological father of a child if he and the child’s biological mother are married to each other and the child is born during the marriage. N.J. Stat. Ann. § 9:17-43(a)(1) (West 2016). The Court in Lewis noted that, “Every statutory provision applicable to opposite-sex couples might not be symmetrically applicable to same-sex couples. The presumption of parentage would apply differently for same-sex partners as both partners could not be the biological parents of the child.” Lewis, 908 A.2d at 216. However, the Court noted that, “It appears that the presumption in such circumstances would be that the non-biological partner consented to the other partner either conceiving or giving birth to a child” Lewis, 908 A.2d at 216. Here, it appears that the NH consented to A~’s conceiving and giving birth to the Claimant. The NH and A~ had entered into a marriage in New York and lived together at the time of the conception, of which the NH appears to have had full, contemporaneous knowledge. Further, the NH states that she wants to support the Claimant, and the NH’s name appears on the birth certificate. Thus, we believe that the presumption is met. Additionally, there does not appear to be clear and convincing evidence rebutting this presumption. See N.J. Stat. Ann. § 9:17-43(b) (A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence).

In the absence of a presumption, a New Jersey court would decide whether the parent and child relationship exists, based on a preponderance of the evidence. N.J. Stat. Ann. § 9:17-43(d). Under that standard, we believe that the parent-child relationship exists. Here, the NH entered into a New York marriage with A~ before the Claimant’s conception and birth. The NH appears to have full, contemporaneous knowledge of the artificial insemination, indicating consent. Further, the NH recognizes the Claimant as her child and is listed as the second parent on the Claimant’s birth certificate. The claimant and the NH have lived together since the child was born. No biological father has sought to be named as the Claimant’s parent. Although this specific set of facts does not appear to have come before the New Jersey courts yet, it seems likely that a child born into a marriage under the same circumstances (born over one year after the marriage, the married couple hold out the child as their own, and no third party seeks to claim paternity) would be considered the child of both married individuals. Further, New Jersey courts have been reluctant to overcome the presumption of parentage, unless there is clear and convincing evidence that establishing another’s paternity and rebutting the spouse’s paternity will serve the best interests of the child. See, e.g., C.R. v. J.G., 703 A.2d 385 (N.J. Sup. Ch. 1997) (“there is a strong public policy favoring the preservation of the family when neither the mother nor the husband have in any way disavowed the husband’s paternity of the child.”); New Jersey Div. of Youth and Family Services v. D.S.H., 40 A.3d 734 (N.J. Super. A.D. 2012) (The mother’s husband was the child’s legal father notwithstanding a paternity test indicating the husband was not the child’s biological father where the husband had no desire to relinquish his status as a father and no one else sought to be named as child’s father).

Accordingly, we believe a parent-child relationship has been established between the NH and the Claimant, and the Claimant would be entitled to inherit under New Jersey intestacy law.

CONCLUSION

It is our opinion that under the intestacy laws of New Jersey, the Claimant could inherit property from the NH as her child. Thus, if the Claimant meets other eligibility requirements, he would be entitled to child’s benefits as the child of the NH.

Footnotes:

[1]

. There is no indication in the record that a physician or a physician’s assistant was present at any of the artificial insemination attempts. Further, the record does not contain copies of this paperwork.

[2]

. Subsections (h)(2)(B) and (3)(B) of section 216(h) describe three alternate ways in which an applicant who is the son or daughter of the insured wage earner, but who is not determined to be a “child” under section 216(h)(2)(A), may nevertheless be “deemed” a child for purposes of section 216(e)(1). Under subsection (h)(2)(B) an applicant who is the son or daughter of the insured wage earner is deemed to be a “child” if the insured and the other parent went through a marriage ceremony that would have been valid but for certain legal impediments. Act § 216(h)(2)(B), 42 U.S.C. § 416(h)(2)(B). The only legal impediments recognized in the Act are the lack of dissolution of a previous marriage or other defect arising out of a previous marriage or its dissolution or defect in the procedure followed in connection with the purported marriage. Sections 216(h)(2)(B), 216(h)(1)(B)(iv) of the Act, 42 U.S.C. §§ 416(h)(2)(B), 416(h)(1)(B)(iv). None of those circumstances apply here. Under subsection (h)(3)(B)(i) an applicant is deemed to be a “child” if the insured acknowledged in writing that the applicant is his or her son or daughter, had been decreed by a court to be the father or mother of the applicant, or had been ordered to pay support because the applicant is his or her son or daughter and such acknowledgment, court decree, or court order was made before such insured individual’s most recent period of disability began. Act § 216(h)(3)(B)(i), 42 U.S.C. § 416(h)(3)(B)(i). Under subsection (h)(3)(B)(ii) an applicant is deemed to be a “child” if the insured is shown by evidence satisfactory to the Commissioner to be the applicant’s father or mother, and the insured was living with or supporting the applicant at the time the applicant filed his application. Act § 216(h)(3)(B)(ii), 42 U.S.C. § 416(h)(3)(B)(ii). To satisfy the requirements of section 216(h)(3), the child must be the number holder’s biological child. Program Operations Manual System (POMS) GN 00306.100. Because the Claimant is not the NH’s biological child, these subsections are not relevant here.

[3]

. New York had enacted a bill recognizing same-sex marriage in that state a few months earlier, in June 2011. See Marriage Equality Act, 2011 Sess. Law News of N.Y. Ch. 95 (A. 8354). The law took effect July 24, 2011.Id. New York does not have a residency requirement for parties seeking to be married in New York. See N.Y. Dom. Rel. Law § 13 (West 2016).

[4]

. The Supreme Court of New Jersey has since held that New Jersey must extend the right to civil marriage to same-sex couples. Garden State Equality v. Dow, 82 A.3d 336, 369 (N.J. Sup. Ct., 2013), stay denied 79 A.3d 479, certification granted 75 A.3d. 1157, stay denied 79 A.3d. 1036. The Court ordered that same-sex partners be permitted to marry in New Jersey beginning on October 21, 2013, almost two years after the NH and A~ married in New York and over six months after the Claimant was born. As of the date of this memorandum, New Jersey has not enacted legislation regarding the retroactive recognition of same-sex marriages established under the laws of other jurisdictions.

B. PR 16-019 Entitlement to Child’s Benefits on NH, the Same-Sex Civil Union Partner of the children’s gestational mother

Date: November 5, 2015

1. Syllabus

For the purposes of establishing a parent-child relationship in intestacy proceedings, we look the New Jersey Parentage Act (NJPA) that guides New Jersey courts. In February 2007, New Jersey enacted a civil union law with the intention of providing same sex couples with all the rights and benefits that married couples enjoy. The New Jersey Civil Union Act (NJCUA) specifically provides that the rights of civil union couples, with respect to the child of whom either becomes the parent during the term of the civil union, shall be the same as those of a married couple with respect to a child of whom either spouse or partner in a civil union couple becomes the parent during the marriage.

In this case, the NH and B~ entered into a Civil Union in New Jersey on August XX, 20XX and the Claimants were born in April 20XX in New Jersey. Their birth certificates list B~ and the NH as their parents. B~ carried and delivered the children and the NH has always lived children and the children consider the NH to be their parent. The NH has not adopted the children and the children have no contact with the donors who are anonymous. The Claimants, their biological mother, and the NH all agree that the NH is the Claimants’ parent. Thus, under a preponderance of the evidence standard, we believe a New Jersey court would find the NH to be the children’s parent. It is our opinion that under the intestacy laws of New Jersey, the claimants could inherit property from the NH as her children. If the Claimants meet other eligibility requirements, they would be entitled to child’s benefits as the children of the NH.

2. Opinion

QUESTION PRESENTED

Whether, under New Jersey law, the claimants, C1~ (C1~) and C2~ (C2~), are eligible for child’s benefits on the earnings record of number holder, M~ (NH), the same-sex partner of the children’s biological mother.

OPINION

It is our opinion that under the intestacy laws of New Jersey, C1~ and C2~ could inherit property from the NH as her children. Thus, if the C1~ and C2~ meet other eligibility requirements, they would be entitled to child’s benefits as the children of the NH.

BACKGROUND

You have told us that on April XX, 20XX, the NH entered into a civil union with her partner, B~ , in Warren Township, Somerset County, New Jersey. C1~ and C2~, twins, were subsequently born on the same day, April XX, 20XX, in Livingston, New Jersey.

The NH reported that the children were conceived via donor sperm and ova, and B~ carried and delivered them. The NH has “always lived with the children,” the children consider the NH to be their parent, the children have no contact with the sperm or egg donors and the donors are anonymous. The NH has not adopted C1~ or C2~. C1~ and C2~’s birth certificates list the NH and Ms. Martino as their parents.

On August XX, 20XX, the NH filed for old-age benefits. Two days later, on August XX, 20XX, the NH applied for child’s insurance benefits on behalf of C1~ and C2~. The NH and B~ currently reside in Watchung, New Jersey with the children.

ANALYSIS

For purposes of child’s benefits under the Social Security Act (Act), a “child” is defined as the child, legally adopted child, stepchild, or in limited circumstances, grandchild of an insured individual. Sections 202(d), 216(e) of the Act, 42 U.S.C. §§ 402(d), 416(e).

Subsection (h)(2)(A) of section 216 provides that in determining whether an applicant is the child of an insured individual for purposes of the Act, the Commissioner shall first apply the law governing the devolution of intestate personal property by the courts of the state in which the insured individual is domiciled at the time the applicant files the application. Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A)1 . The NH was domiciled in New Jersey when the children’s applications were filed. Therefore, whether the children can be considered to be the NH’s children under the Act must be determined under New Jersey intestacy law.

Under New Jersey intestacy law, in the absence of a surviving spouse or domestic partner, the decedent’s property passes to his “descendants.” N.J. Stat. Ann. § 3B:5-4(a) (West 2015). A descendant of an individual is defined as all of the individual’s “progeny of all generations, with the relationship of parent and child at each generation being determined by the definition of child contained in this section and parent contained in [N.J. Stat. Ann. § 3B:1-2].” N.J. Stat. Ann

§ 3B:1-1 (West 2015). A child is defined as the natural or adopted child, entitled to take by intestate succession from the parent whose relationship is involved, to the exclusion of stepchildren, grandchildren, or any more remote descendants. N.J. Stat. Ann § 3B:1-1 (West 2015). A parent is defined as any person who is entitled to take a share of the estate if the child, natural or adopted, dies without a will, and it excludes stepparents and grandparents. N.J. Stat. Ann § 3B:1-2 (West 2015).

For the purposes of establishing a parent-child relationship in intestacy proceedings, the New Jersey Parentage Act (NJPA) guides New Jersey courts. N.J. Stat. Ann. § 3B:5-10 (West 2015), see N.J. Stat. Ann. §§ 9:17-38 et seq. The NJPA defines the parent and child relationship as the “legal relationship existing between a child and the child’s natural or adoptive parents, incident to which the law confers or imposes rights, privileges, duties and obligations.” N.J. Stat. Ann. § 9:17-39 (West 2015). It further states that the “parent and child relationship” includes the “mother and child relationship and the father and child relationship.” Id.

In February 2007, New Jersey enacted a civil union law with the intention of providing same-sex couples with all the rights and benefits that married couples enjoy. The New Jersey Civil Union Act (NJCUA) specifically provides that “[t]he rights of civil union couples, with respect to the child of whom either becomes the parent during the term of the civil union, shall be the same as those of a married couple with respect to a child of whom either spouse or partner in a civil union couple becomes the parent during the marriage.” N.J. Stat. Ann. § 37:1-31(e) (West 2015). The NJCUA further provides that whenever any law, rule, regulation, or judicial or administrative proceeding references “marriage,” “husband,” “wife,” “spouse,” or other words connoting a specific marital relationship, the word shall include civil union partners pursuant to the provisions of the NJCUA. N. J. Stat. Ann. § 37:1-33 (West 2015). At the time the children were born, the NH and B~ had entered into a civil union, and thus, any rights accorded the NH would be comparable to those of a married couple with respect to a child of whom either spouse became the parent during the marriage.

New Jersey law does not explicitly define the term “natural” with reference to either the child or the parent. However, New Jersey courts have routinely used the term “natural” to mean “biological.” See e.g., Matter of Baby M., 537 A.2d 1227 (N.J. 1988) (case involving parental rights of three parties - child’s “natural” father, “natural” mother and wife of the “natural” father); Matter of Adoption of Two Children by H.N.R., 666 A.2d 535 (N.J.Super. A.D. 1995) (in case involving adoption of child by same-sex partner of biological mother, court used “natural” and “biological” interchangeably). Thus, we do not believe that the children could be termed the “natural” children of the NH, or establish that they are the NH’s natural child under any provision requiring a biological relationship to the mother. For example, although Ms. Martino would qualify as the children’s mother under the NJPA provision providing that the parent and child relationship between a child and the child’s natural mother may be established by proof of the mother having given birth to the child, the NH would not. N.J. Stat. Ann. 9:17-41(a).

The NJPA also includes New Jersey’s Artificial Insemination statute. That statute states in relevant part:

If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived.

N.J. Stat. Ann. § 9:17-44(a).

Prior to the enactment of the NJCUA, the New Jersey Superior Court held that the artificial insemination statute could be read in a gender-neutral way so as to encompass same-sex partners. See In re Robinson, 890 A.2d 1036 (N.J. Super. Ct., Chancery Div. 2005). In Robinson, the court held that, under the artificial insemination statute, the same-sex partner of the birth-mother, who had conceived via artificial insemination, would be presumed to be the parent of that child in the same way that the husband of a birth mother who had conceived via artificial insemination would be presumed to be the father. Robinson, 890 A.2d at 1042. The court stated held that an “individual seeking equal treatment under the Artificial Insemination statute must show indicia to be a spouse and to be a parent to the child.” Id. The court noted that the couple had entered into a domestic partnership under New York law and, of particular significance, had been legally married in Canada prior to the conception of the child. Robinson, 890 A.2d at 1041.

Robinson appears to be the only New Jersey case to have addressed this narrow issue involving the parentage of a child conceived by artificial insemination within the context of a same-sex union. However, following the enactment of the NJCUA, the Appellate Division of the New Jersey Superior Court questioned the Robinson decision. In re T.J.S., 16 A.3d 386 (N.J. Super. Ct. App. Div, 2011), aff’d 54 A.3d 263 (N.J. 2012). In T.J.S., the plaintiffs were an opposite-sex couple who had a child born via a surrogate gestational carrier with the husband’s sperm and a donor egg. The court found that the NJPA provided for a declaration of maternity only to a biologically- or gestationally-related female and required adoption to render an infertile wife the legal mother of a child biologically related to the husband and an anonymous ovum donor who was born to a gestational carrier. Id. In finding that the artificial insemination statute could not be used to confer parentage in the circumstances of the T.J.S. case, the court held that Robinson did not suggest to the contrary and was not analogous to the circumstances of the T.J.S. case. T.J.S., 16 A.3d at 396, n.11. The Court noted that in Robinson, the couple

mirrored the situation articulated by the Legislature in the Artificial Insemination Statute, save for the gender of the non-gestational partner. The couple, in a relationship equivalent to marriage (citation omitted), was unable to have a child through “traditional” means. Accordingly, the gestational partner was artificially inseminated by the sperm of a donor with the consent of her partner. The resulting child was thus biologically related to the gestational partner. Most important to the present circumstances, a third-party gestational carrier, and her accompanying rights, were not involved.

T.J.S., 16 A.3d at 396, n.11. Nonetheless, the court went on to state that, in its view, the Robinson court erred by relying on a “best interest” standard in deciding the issue of parentage. And, it expressed no view as to whether the same result could have been reached by a different analysis. Id.

Further, in 2011, a superior court held that the artificial insemination statute providing for the absence of parental rights and responsibilities of a donor of semen did not apply where there was no physician involved in the insemination process. E.E. v. O.M.G.R., 20 A.3d 1171 (N.J. Sup. Ct., Chancery Div. 2011). In that case, the mother, a single woman without a partner, wished to have a child. The mother and biological father of the child conceived through a self-administered “artificial insemination” procedure. The biological father attempted to surrender his parental rights. Because the parties had not strictly complied with a provision of the artificial insemination statute, that statute did not apply to relieve the father of his rights and responsibilities under the law. E.E., 20 A.3d at 1176-77.

While neither T.J.S. nor E.E. are analogous, and, even if Robinson could still be considered to be good law, it cannot be said that the NH and B~ meet the criteria of Robinson or of the Artificial Insemination Statute. Notably, unlike the parents in Robinson, the NH and B~ had not entered into a civil union or a legal marriage at the time the children were conceived. See Robinson, 890 A.2d 1041 (Same-sex couple had legally married in Canada prior to the conception of the child and “[t]he commitment [the couple] made to each other during the wedding in the foreign jurisdiction is the essence of a marriage and of the Artificial Insemination Statute in its reference to “husband’ and “wife.”); see also N.J. Stat. Ann. § 9:17-44(a) (If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived). Consequently, even assuming the artificial insemination statute is applicable to a same-sex couple, the requirements of the artificial insemination statute are not met.

Next we turn to whether any presumptions of parentage would be applicable to New Jersey same-sex couples. As noted above, the NJCUA specifically provides that “[t]he rights of civil union couples, with respect to the child of whom either becomes the parent during the term of the civil union, shall be the same as those of a married couple with respect to a child of whom either spouse or partner in a civil union couple becomes the parent during the marriage.” N.J. Stat. Ann. § 37:1-31(e) (West 2015). Under New Jersey law, a man is presumed to be the biological father of a child if he and the child’s biological mother are married to each other and the child is born during the marriage. N.J. Stat. Ann. § 9:17-43(a)(1). (West 2015). The Court in Lewis noted that, “Every statutory provision applicable to opposite-sex couples might not be symmetrically applicable to same-sex couples. The presumption of parentage would apply differently for same-sex partners inasmuch as both partners could not be the biological parents of the child.” Lewis, 908 A.2d at 216. However, the Court went on to note that, “It appears that the presumption in such circumstances would be that the non-biological partner consented to the other partner either conceiving or giving birth to a child,” the circumstance that exists here. Lewis, 908 A.2d at 216. Further, there does not appear to be clear and convincing evidence rebutting this presumption. See N.J. Stat. Ann. § 9:17-43(b) (A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence). And finally, even if no presumptions were to apply, a New Jersey court would decide whether the parent and child relationship exists, based on a preponderance of the evidence. N.J. Stat. Ann. § 9:17-43(d). Here, the NH entered a civil union with B~ the day the children were subsequently born, indicating consent within the confines of a civil union. Further, the NH is listed as the second parent on the children’s birth certificates. You have also told us that the NH, B~, and the children have lived together since the children were born and the children consider the NH to be their parent. Thus, under a preponderance of the evidence standard, we believe a New Jersey court would find the NH to be the children’s parent.

CONCLUSION

It is our opinion that under the intestacy laws of New Jersey, C1~ and C2~ could inherit property from the NH as her children. Thus, if the C1~ and C2~ meet other eligibility requirements, they would be entitled to child’s benefits as the children of the NH.

Stephen P. Conte

/s/ Stephen P. Conte

Regional Chief Counsel, Region II


Footnotes:

[1]

. Subsections (h)(2)(B) and (3)(B) of section 216(h) describe three alternative ways in which an applicant who is the son or daughter of the insured wage earner, but who is not determined to be a “child” under section 216(h)(2)(A), may nevertheless be “deemed” a child for purposes of section 216(e)(1). Under subsection (h)(2)(B) an applicant who is the son or daughter of the insured wage earner is deemed to be a “child” if the insured and the other parent went through a marriage ceremony that would have been valid but for certain legal impediments. Act § 216(h)(2)(B), 42 U.S.C. § 416(h)(2)(B). The only legal impediments recognized in the Act are the lack of dissolution of a previous marriage or other defect arising out of a previous marriage or its dissolution or defect in the procedure followed in connection with the purported marriage. Sections 216(h)(2)(B), 216(h)(1)(B)(iv) of the Act, 42 U.S.C. §§ 416(h)(2)(B), 416(h)(1)(B)(iv). Here, there was no marriage. Under subsection (h)(3)(B)(i) an applicant is deemed to be a “child” if the insured acknowledged in writing that the applicant is his or her son or daughter, had been decreed by a court to be the father or mother of the applicant, or had been ordered to pay support because the applicant is his or her son or daughter and such acknowledgment, court decree, or court order was made before such insured individual’s most recent period of disability began. Act § 216(h)(3)(B)(i), 42 U.S.C. § 416(h)(3)(B)(i). Under subsection (h)(3)(B)(ii) an applicant is deemed to be a “child” if the insured is shown by evidence satisfactory to the Commissioner to be the applicant’s father or mother, and the insured was living with or supporting the applicant at the time the applicant filed his application. Act § 216(h)(3)(B)(ii), 42 U.S.C. § 416(h)(3)(B)(ii). To satisfy the requirements of section 216(h)(3), the child must be the NH’s biological child. Program Operations Manual System (POMS) GN 00306.100. Because the Claimants are not the NH’s biological children, these subsections are not relevant here.


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PR 00905.033 - New Jersey - 02/02/2017
Batch run: 02/02/2017
Rev:02/02/2017