1) Whether A~ (A~) and twins L~ and L2~ (twins) are eligible for child’s benefits
on the record of S~, the number holder (NH)?
2) Whether J~ (Claimant) is eligible for father’s benefits on the record of his same-sex
spouse, the NH?
For the reasons discussed below, we believe the agency could find that A~ and the
twins are the children of the NH and Claimant is the spouse of the NH for purposes
of determining entitlement to benefits.
The NH and Claimant were married on November XX, 2011 in New York City. Thereafter,
the NH and Claimant entered into an agreement with a gestational carrier to conceive
a child through in vitro fertilization. Both the NH and Claimant provided sperm for
the fertilization, and eggs were provided by an anonymous donor.
On March XX, 2013, the Superior Court of F~ County, State of Georgia, ordered that
the NH and Claimant were each to be declared the “legal Father/Parent” of the baby
carried by the gestational carrier. The order specified that this was “for all intents
and purposes, under Georgia law, including, but not limited to, for purposes of exercise
of parental rights, obligations, and responsibilities, and for the rights of inheritance.”
The order also stated that jurisdiction and venue were proper because the Georgia
Department of Public Health was domiciled in F~ County. The gestational carrier and
her spouse each signed the order to indicate their consent to surrender any “arguable
parental rights.” The court also noted that the anonymous egg donor, by virtue of
her agreement to donate, similarly relinquished all possible rights and obligations
to any resulting children. Both parties consented to all aspects of the order, including
jurisdiction. On March XX, 2013, A~ was born in Georgia. Pursuant to the court’s
order, A~’s birth certificate listed the NH as the “Parent” and Claimant as the “Father.”
On September XX, 2013, the NH and Claimant entered into another agreement with the
same gestational carrier. Claimant provided sperm for the fertilization, and eggs
were provided by an anonymous donor. As part of this agreement, the parties consented
to jurisdiction in any court in Georgia to address any dispute arising under the agreement,
and likewise agreed to apply Georgia law. In the agreement, Claimant was identified
as the “Natural Father,” to whom the child[ren] conceived would be biologically related,
and the NH was identified as the “Intended Father.” The gestational carrier and her
husband relinquished all rights to any children conceived pursuant to the agreement,
and signed a further declaration of intent on October XX, 2013. The parties specifically
conferred jurisdiction and venue upon the Superior Court of F~ Country, Georgia, for
any and all controversies, claims, or enforcement actions under the agreement and
the relationships created thereunder. Further, the parties again stated that the agreement
would be governed and construed in accordance with Georgia law. Two embryos were created
in accordance with the agreement, and these were implanted on October XX, 2013.
On December XX, 2013, the NH died while traveling in Pennsylvania. At the time of
his death, the NH was domiciled in New York. Thereafter, on May XX, 2014, the Superior
Court of F~ County, State of Georgia, ordered that the NH and Claimant were declared
the “legal Fathers/Parents” of the twins “for all intents and purposes, under Georgia
law, including, but not limited to, for purposes of exercise of parental rights, obligations,
responsibilities and for the rights of inheritance.” The order specifically noted
that jurisdiction and venue were proper, as the Georgia Department of Public Health
is domiciled in F~ County. As in connection with A~’s birth, the gestational carrier
and her spouse signed the order to indicate their consent to surrender any “arguable
parental rights,” and the anonymous egg donor was declared to have relinquished all
possible rights and obligations to the children. Claimant, the gestational carrier
and her spouse all signed the order in front of a notary, stating that they consented
to all aspects of the order, including jurisdiction. On June XX, 2014, the twins were
born in Georgia. Pursuant to the court’s order, the NH and Claimant were each listed
as a “Parent” on the twins’ birth certificates.
Claimant currently resides in Brooklyn, New York with A~ and the twins.
A. Federal Law Regarding Child’s and Father’s Benefits
1. Federal Law Regarding Child’s Benefits
An individual may be eligible for child survivor’s insurance benefits if:
(1) he or she is the “child” of the insured, as defined in section 216(e) of the Social
Security Act; and
(2) he or she was “dependent upon” the insured at the time of his death. Act § 202(d)(1),
42 U.S.C. § 402(d)(1); 20 C.F.R.§ 404.350. The Act defines “child” as “the child or
legally adopted child of an individual.” Act § 216(e)(1), 42 U.S.C. § 416(e)(1).
In determining whether an applicant is the child of an insured individual, the
Commissioner applies the law governing the devolution of intestate personal property
applied by the courts of the state in which the insured individual was domiciled at
the time of death. Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A). Here, the NH was
domiciled in New York when he died. Thus, New York law applies.
2. Federal Law Regarding Father’s Benefits
In accordance with 20 C.F.R. § 404.339, a surviving spouse is entitled to father’s
benefits on the record of the NH if he is a widower of the insured and meets one of
the conditions described in 20 C.F.R. § 404.335(a). One of the conditions in 20 C.F.R.
§ 404.335(a) is that the spousal relationship lasted at least nine months immediately
before the insured died. In addition, the surviving spouse must apply for benefits,
be unmarried, not be entitled to widower’s benefits or an old age benefit that is
equal to or larger than the full father’s benefit, and he must also have in his care
the insured’s child who is entitled to child’s benefits and is under 16 years old
or is disabled. 20 C.F.R. § 404.339(b)-(e).
3. Full Faith and Credit
Under the Full Faith and Credit Clause of the Constitution, States must give full
faith and credit to the public acts, records and judicial proceedings of other States.
U.S. Const. Art. IV, § 1; 28 U.S.C. § 1738; Baker v. Gen. Motors Corp., 522 U.S. 222,
231-232 (1998). The full faith and credit obligation is exacting. Baker, 522 U.S.
at 233. The purpose of the Full Faith and Credit Clause is to avoid conflicts between
States in adjudicating the same matters, functioning to “weld the independent States
into a Nation.” Matter of Farmland Dairies v. Barber, 489 N.Y.S.2d 713, rearg. denied
493 N.Y.S.2d 1030 (1985). A State is not required, however, to afford full faith and
credit to a judgment rendered by a court that “did not have jurisdiction over the
subject matter or the relevant parties.” Underwriters Nat. Assurance Co. v. North
Carolina Life & Accident & Health Ins. Guaranty Assn., 455 U.S. 691, 705 (1982). “Consequently,
before a court is bound by [a] judgment rendered in another State, it may inquire
into the jurisdictional basis of the foreign court’s decree.” Id. Analyzing whether
the one State must afford full faith and credit to a judgment made by another State
thus requires a two-tiered analysis: first, we must consider whether the original
court had jurisdiction, thus entitling the judgment to full faith and credit; and
second, we must determine how much credit the judgment is entitled to receive. Underwriters
Nat. Assurance Co., 455 U.S. at 705. A State may not disregard the judgment of a sister
State because it disagrees with the reasoning underlying the judgment or deems the
judgment wrong on the merits. V.L. v. E.L., 136 S.Ct. 1017, 1020 (2016) (finding that
Alabama must honor a Georgia decree of adoption, despite disagreeing with the decision,
when the Georgia Superior Court properly had jurisdiction).
B. New York Law
1. New York Law Regarding Intestacy
New York’s intestacy law statutes provide that a decedent’s “spouse and issue” may
inherit, with children “conceived before [the decedent’s] death but born alive thereafter”
inheriting “as if they were born in his or her lifetime.” N.Y. Est. Powers & Trusts
Law § 4-1.1(a), (c). “Issue,” in turn, is defined as “descendants in any degree from
a common ancestor,” and the “terms ‘issue’ and ‘descendants’ . . . include adopted
children.” N.Y. Est. Powers & Trusts Law § 1-2.10.
New York intestacy law statutes do not expressly contemplate children born through
surrogacy, and a New York domestic law statute specifies that surrogate parenting
contracts are contrary to New York public policy, and are void and unenforceable.
N.Y. Dom. Rel. § 122. Although New York domestic relations laws mention proceedings
regarding parental rights and status or obligations when the rights of parties to
a surrogacy are at issue, they do not direct an outcome if there is a dispute involving
a surrogacy contract. N.Y. Dom. Rel. § 124.
2. Same-Sex Marriage in New York
In July 2011, New York State enacted the Marriage Equality Act (MEA), which provides
that “[a] marriage that is otherwise valid shall be valid regardless of whether the
parties to the marriage are of the same or different sex.” N.Y. Dom. Rel. Law §10-a(1).
The MEA also states that no common law or statutory provisions relating to marriage
“shall differ based on the parties to the marriage being or having been of the same
sex rather than a different sex.” N.Y. Dom. Rel. Law §10-a(2). The MEA further provides
that when determining the rights and responsibilities of spouses under the law, all
gender-specific language or terms should be construed in a gender-neutral manner.
Id. Likewise, the Supreme Court has held State laws invalid to the extent they exclude
same-sex couples from marriage on the same terms and conditions as opposite-sex couples.
Obergefell v. Hodges, 576 U.S. ___, ___, 135 S. Ct. 2584, 2604-05 (2015).
A. Child’s Benefits
Did the Superior Court of F~ County, Georgia, Have Jurisdiction? Yes. Georgia law
does not prohibit surrogacy contracts. On March XX, 2013 and March XX, 2014, the Superior
Court of F~ County, State of Georgia, ordered that both the NH and Claimant were the
“legal Fathers/Parents” of A~ and the twins, respectively. The court had adjudicatory
authority over the subject-matter in both cases as the Georgia Department of Public
Health, which created and maintained the vital records for the children, was located
in F~ County, and because the case involved a child custody / parental declaration
matter within the State of Georgia. See Ga. Code Ann. § 15-6-8 (granting authority
to superior courts to exercise jurisdiction granted to them by the laws of the State);
Ga. Code Ann. § 9-4-2 (providing that the Superior Court has the power to declare
rights and legal relations); Ga. Code Ann. §§ 15-11-10(3)(D), 19-7-1(B)(1), 19-7-40(a)
(providing the Superior Court jurisdiction over proceedings to terminate the legal
parent-child relationship when the legal parents voluntarily release parental rights
to a third person and proceedings for the determination of paternity of children who
are Georgia residents). The court also had personal jurisdiction over the parties,
both because the NH and Claimant entered into a contract in the State with the gestational
carrier and because they expressly consented, prior to the NH’s death, to jurisdiction
and to the proposed order. See Ga. Code Ann. § 9-10-91(1) (granting jurisdiction over
nonresidents when the nonresident transacts “any business” in the State).
2. How Much Credit Should the Judgment Receive?
As explained above, New York intestacy law does not expressly contemplate children
born through surrogacy. But here, enforcement of the surrogacy agreement is not at
issue; instead the question is whether New York will afford full faith and credit
to a judgment from another State finding parentage for inheritance purposes where
surrogacy was involved. Although we were unable to locate authority that considered
the matter specifically under the circumstances presented here, it seems clear that
New York Courts would recognize Georgia’s orders that the NH is the “legal Father/Parent”
of A~ and the twins for the purpose of inheritance. See Matter of Doe, 793 N.Y.S.2d
878 (Surr. Ct. N.Y. Co. 2005) (holding that New York’s policy concerning surrogacy
agreements should not impact its requirement to afford full faith and credit to a
sister state’s judgment of parentage involving a surrogacy agreement); see also V.L.
v. E.L., 136 S.Ct. at 1020 (noting that a “State may not disregard the judgment of
a sister State because it disagrees with the reasoning underlying the judgment or
deems it to be wrong on the merits”); Baker, 522 U.S. at 233 (noting that the Supreme
Court’s “decisions support no roving ‘public policy exception’ to the full faith and
credit due judgments”). Thus, in accordance with the Full Faith and Credit Clause,
New York is required to recognize Georgia’s order and judgment that A~ and the twins
are the children of the NH and would inherit as the NH’s children. See N.Y. Est. Powers
& Trusts Law § 4-1.1(a), (c).
B. Father’s Benefits
Claimant and the NH were validly married in November 2011, and remained married at
the time of the NH’s death. As a result, Claimant is a widower whose marital relationship
lasted at least nine months, as is required to receive benefits. See 20 C.F.R. § 404.335(a).
As discussed above, Claimant also has the NH’s children under his care. See 20 C.F.R.
§ 404.339. Therefore, assuming he meets the other eligibility requirements, the agency
could find that Claimant would be entitled to father’s benefits on the NH’s record.
As discussed above, the Full Faith and Credit Clause requires New York to give effect
to the judgment of the Superior Court of F~ County, State of Georgia regarding the
parentage of A~ and the twins. Consequently, under the intestacy laws of New York,
we believe the New York courts would find that A~ and the twins could inherit from
the NH as his children. Likewise, Claimant was validly married to the NH for at least
nine months immediately before the NH died. Thus, assuming Claimant and the children,
A~ and the twins, meet the other eligibility requirements, the agency could find they
are entitled to benefits on the record of the NH’s account.
 This opinion is based upon evidence provided by the New York Center for Disability
and Program Support, except where otherwise noted.
 It appears that the petitioners additionally signed in front of a notary to indicate
their consent, although we have a copy of only the pages that include the NH’s signature.
 A copy of this order was provided by Claimant, through his Congressperson.
 Sections 216(h)(2)(B) and (h)(3)(B) of the Act describe three alternative ways
in which an claimant 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). These alternatives must be examined
if a claimant does not qualify as the NH’s children under the criteria of section
 An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act
is also deemed dependent upon the insured individual. 20 C.F.R. § 404.361(a) (“If
you are the insured’s natural child, as defined in § 404.355, you are considered dependent
upon him or her”); Social Security Ruling 77-2c (“where state intestacy law provides
that a child may take personal property from a father’s estate, it may reasonably
be thought that the child will more likely be dependent during the parent’s life...”)
 According to the evidence, it is possible that the NH is the biological father
of A~. However, the agency does not have to request proof of biological parenthood
because the Georgia orders of parentage for all the children must be given full faith
and credit by New York.
 This case concerns a trust and the intent of the settlor to exclude adopted children
with respect to children who were born, pursuant to surrogacy agreement, from an egg
fertilized with sperm of settlor’s daughter’s husband, and of whom his daughter and
her husband had been adjudicated the parents by judgment of California court.