TN 24 (12-18)

PR 00905.035 New York

A. PR 19-015 Eligibility for Child's Benefits Based on the Record of the Number Holder, the Same-Sex Spouse of the Claimants' Biological/Birth Mother - New York

Date: October 23, 2018

SYLLABUS

The Marriage Equality Act (MEA) recognized the validity of same-sex marriage and established that no common law or statute relating to marriage should differ based on the sexes of the parties to the marriage.

New York Domestic Relations Law provides that any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, birth child of the husband and his wife for all purposes. The written consent shall be executed and acknowledged by both the husband and wife and the physician who performs the technique shall certify that he had rendered the service.

The common law rule was that a child born of consensual artificial insemination by donor during a valid marriage is a legitimate child entitled to the rights and privileges of a naturally conceived child of the same marriage.

In this case, the same-sex couple had not strictly complied with the requirements of New York Domestic Relations Law because the physician did not personally sign the statement and because the case involved in-vitro fertilization. However, as children consensually conceived and born to a legally married same-sex couple after the enactment of the MEA, we believe the claimants would be presumed to be the legitimate children of the number holder (NH) under New York law and would be entitled to inherit from the NH under the New York intestacy statutes.

QUESTION PRESENTED

Whether H~ and A~ (Claimants), the biological children of H2~, are entitled to child’s benefits on the record of H2~'s same-sex wife, K~, the number holder (NH).

SHORT ANSWER

We believe that New York courts would find that the Claimants can inherit from the NH as her children under the intestacy laws of New York. Accordingly, we believe there is legal support for the agency to conclude that the Claimants are entitled to receive benefits on the NH’s record, assuming that they have satisfied the other statutory and regulatory requirements.

OPINION

BACKGROUND[1]

The NH is currently receiving Social Security Disability Insurance Benefits (DIB) based on a Title II application filed on June XX, 2011. The agency found her disabled and entitled to benefits effective April 2011.

H2~ and the NH were legally married on July XX, 2010 in Connecticut, although they resided in New York.

The Claimants were conceived via in-vitro fertilization under the care of Dr. R~ and the CNY Fertility Center Team. H2~ was the biological and gestational mother of the twins, and the NH was listed in the fertility records as H2~’s partner. The couple used sperm from an anonymous sperm donor for the procedure, and H2~ and the NH both signed a consent form dated February XX, 2013. The consent form was signed by a witness, but was not signed by the physician who performed the procedure. Dr. R~ provided a statement dated June XX, 2013, stating that he performed the IVF procedure.

The Claimants were born on November XX, 2013 in New York. Both birth certificates list H2~ and the NH as the mothers of the twins.

On July XX, 2014, H2~ filed a claim for auxiliary benefits on behalf of the Claimants on the NH’s record, as the NH’s dependent minor children. H2~, the NH, and the Claimants currently live together in New York. There are no allegations from the NH that the Claimants are not her children.

LEGAL ANALYSIS

A. Federal Law

Under section 202(d)(1) of the Social Security Act (Act), an applicant must be the “child” of the insured individual to qualify for child’s benefits on the earnings record of that individual. Act § 202(d)(1); 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a). The definitions applicable to determining whether an applicant qualifies as a “child” are set forth in subsection (e) of section 216 of the Act, which, of relevance here, states that the term “child” means (1) child or legally adopted child. Act § 216(e), 42 U.S.C. § 416(e).[2] 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 such applicant files the application. Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A); See Astrue v. Capato, 132 S.Ct. 2021 (2012).

The NH was domiciled in New York at the time of the July 2014 applications and thus, New York’s law of intestate succession applies in determining the status of the claimants as the children of the NH under section 216(h)(2)(A) of the Act. 20 C.F.R. §§ 404.355(a)(1), 404.355(b); POMS GN 00306.001.

B. New York State Law

  1. 1. 

    Intestate Succession Under New York State Law

    New York law provides that an intestate decedent’s property may pass to his “issue.” See N.Y. Est. Powers & Trusts Law § 4-1.1(a). “Issue” is defined under the law as “descendants in any degree from a common ancestor,” including adopted children. Id. § 1-2.10(a)(1).

    In defining “issue,” New York intestacy statutes do not specify whether a child born to a married couple via assistive reproductive technology would be considered the “issue” of a spouse that has no biological or adoptive relationship to the child.[3] As such, and in the absence of clear case law regarding intestacy rights, it is necessary to look to more general domestic relations law to consider whether the claimants would be considered the children of the NH.

  2. 2. 

    “Parenthood” Under New York State Law

    1. a. 

      New York State’s Presumption of Legitimacy and the Use of Assistive Reproductive Technology

      The New York legislature anticipated the impact of artificial insemination by donor (AID) procedures on the determination of parenthood, and enacted Section 73 of the New York Domestic Relations Law (N.Y. Dom. Rel. Law § 73) in 1974. This statute provides:

      Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, birth child of the husband and his wife for all purposes. The aforesaid written consent shall be executed and acknowledged by both the husband and wife and the physician who performs the technique shall certify that he had [sic] rendered the service.

      N.Y. Dom. Rel. Law § 73. When all of the statutory conditions are met, the statute creates an “irrebuttable presumption of paternity.” Laura W.W. v. Peter W.W., 856 N.Y.S.2d 258, 261 (3d Dept. 2008).[4] However, strict compliance is required. See id.

      In this case, H2~ and the NH both signed a consent form for the IVF procedure in February 2013. The consent form was signed by a witness, but was not signed by the physician who performed the procedure. See N.Y. Dom. Rel. Law § 73 (providing that the consent must be executed by both spouses “and the physician who performs the technique shall certify that he . . . rendered the service”). Dr. R~ did provide a type-written statement in June 2013, confirming that he performed the procedure. However, because the physician did not personally sign the statement, and because the case involved IVF[5] , it is not clear that a New York court would find that H2~ and the NH complied with the strict requirements of the statute. See N.Y. Dom. Rel. Law § 73.

      Nevertheless, New York courts have concluded that compliance with N. Y. Dom. Rel. Law § 73 is not the exclusive means for a spouse to establish parentage of a child born through AID procedures to a married woman. In Laura W.W., the appellate court noted that prior to the enactment of N.Y. Dom. Rel. Law § 73, the common law emphasized New York’s “strong policy in favor of legitimacy.” Laura W.W. v. Peter W.W., 856 N.Y.S.2d at 262. Indeed, “the presumption that a child born to a marriage is the legitimate child of both parents is one of the strongest and most persuasive known to the law.” Id. (internal citations omitted); see N.Y. Dom. Rel. Law § 24 (codifying common law presumption); see also, e.g., Matter of Fay’s Estate, 44 N.Y.2d 137, 141 (N.Y. 1978) (noting the “established legal presumption that every person is born legitimate,” and applying this in connection with an intestate estate). With respect to AID, the common law rule was that “a child born of consensual AID during a valid marriage is a legitimate child entitled to the rights and privileges of a naturally conceived child of the same marriage.” Laura W.W. v. Peter W.W., 856 N.Y.S.2d at 262. Accordingly, although the couple had not strictly complied with the requirements of N.Y. Dom. Rel. Law § 73, the Laura W.W. court applied New York’s “strong presumption of legitimacy, as well as the compelling public policy of protecting children conceived [by these methods],” to impose a rebuttable presumption of consent and conclude that the husband was a parent of the child born through AID to his wife under the common law presumption of legitimacy. Id.

    2. b. 

      The Application of New York State's Presumption of Legitimacy to Children Born to Same-Sex Relationships

      Prior to the legalization of same-sex marriage in New York in 2011, the courts began to consider the definition of parenthood in the context of a child born to a same-sex relationship. Drawing a bright-line rule, New York State’s highest court, the Court of Appeals, held that an unmarried same-sex partner could not be considered a child’s parent for purposes of obtaining standing to seek custody or visitation without a biological or adoptive relation to the child. See Alison D. v. Virginia M., 77 N.Y.2d 651 (N.Y. 1991); see also Debra H. v. Janice R., 14 N.Y.3d 576 (N.Y. 2010) (reaffirming that parentage under New York law[6] is derived only from biology or adoption).

      In July 2011, New York State enacted the Marriage Equality Act (MEA), in which it recognized the validity of same-sex marriage and established that no common law or statute relating to marriage should differ based on the sexes of the parties to the marriage. N.Y. Dom. Rel. Law § 10-a(1)-(2). However, although the MEA required gender neutrality in determining the rights and responsibility of spouses under the law, it did not address the definition of parenthood.

      The lower courts subsequently began to consider the effect of the MEA on parenthood in same-sex marriages under New York law.[7] In Wendy G-M., the New York State Supreme Court found that, although the same-sex couple had not strictly complied with the requirements of N.Y. Dom. Rel. § 73, a presumption of legitimacy could be derived from the same-sex couple’s valid marriage. Wendy G-M. v. Erin G-M., 985 N.Y.S.2d 845 (N.Y. Sup. Ct. 2014). In reaching this decision, the court relied in part on the appellate court’s decision in Laura W.W., and reasoned that the MEA required a gender-neutral reading of the common law rule that a child born of consensual AID during a valid marriage is a legitimate child of both spouses, regardless of their sex. Id. at 860.

      In August 2016, the New York Court of Appeals reconsidered Alison D. in the post-MEA era, and overruled the earlier decision. See Brooke S.B. v. Elizabeth A.C.C. 28 N.Y.3d 1 (N.Y. 2016). Instead, the Brooke S.B. court concluded that a non-biological and non-adoptive parent in an unmarried, same-sex couple could obtain standing to petition for custody and visitation,[8] so long as the parent could prove with clear and convincing evidence that the couple had entered into a pre-conception agreement to conceive and raise a child as co-parents. Id.

      The Brooke S.B. court did not specify whether its holding applied to legally married same-sex couples, but the language in the court’s decision makes clear that the court believed that New York State had already recognized parenthood rights for a non-biological same-sex spouse in a valid marriage. See Brooke S.B., 28 N.Y.3d at 25 (“[u]nder the current legal framework, which emphasizes biology, it is impossible – without marriage or adoption – for both former partners of a same-sex couple to have standing, as only one can be biologically related to the child”) (emphasis added). Moreover, when read in the context of New York State’s recognition of same-sex marriage under the MEA, and the rights that accompany a marriage, it appears illogical for the court to limit its holding in Brooke S.B. to unmarried same-sex couples. Indeed, following the Brooke S.B. decision, New York appellate courts have found that a child born into a same-sex marriage is presumed to be the legitimate child of both spouses. See Christopher YY. v. Jessica ZZ, 69 N.Y.S.3d 887, 891 (3d Dept. 2018) (“[a]s the child was born to respondents, a married couple, they have established that the presumption of legitimacy applies, a conclusion unaffected by the gender composition of the marital couple or the use of informal artificial insemination by donor”); see also In re Maria-Irene D., 61 N.Y.S.3d 221 (1st Dept. 2017) (holding that a child born as the result of jointly executed surrogacy agreements, at a time when a male couple was considered legally married, gave rise to the presumption that the child was the legitimate child of the two married men). Courts have also noted in this context that the concept of “legitimacy” assumes inheritance rights as part of the legal status that comes with parentage. See, e.g., Christopher YY. v. Jessica ZZ, 69 N.Y.S.3d at 892 n.8; Wendy G-M. v. Erin G-M., 985 N.Y.S.2d at 849.

      Accordingly, even if a New York court would find that H2~ and the NH had not complied with the requirements of N.Y. Dom. Rel. § 73, we believe that the court would hold that, as children consensually conceived and born to a legally married same-sex couple after the enactment of the MEA, the Claimants would be presumed to be the legitimate children of the NH under New York law,[9] and therefore would be entitled to inherit from the NH under the New York intestacy statutes. See N.Y. Est. Powers & Trusts Law § 4-1.1. Thus, assuming the Claimants meet the other eligibility requirements, they would be entitled to child’s benefits on the record of the NH’s account as the NH’s children.

CONCLUSION

We believe that New York courts would find that the Claimants can inherit from the NH as her children under New York intestacy law. Therefore, we believe there is legal support for the agency to conclude that the Claimants are entitled to receive benefits on the NH’s record as her children, assuming that they have satisfied the other statutory and regulatory requirements for such benefits.

 

B. PR 16-152 Entitlement to Child’s Benefits

Date: June 2016

1. Syllabus

The number holder (NH) was domiciled in New York when the application for child’s benefits was filed; therefore, the New York law of intestate succession applies in determining the child’s status under section 216(h)(2)(A) of the Act. New York would recognize the Pennsylvania court order declaring the NH and her spouse as the claimant’s parents. After analyzing the validity of the Pennsylvania judgment, we have concluded that it was valid and established a parent-child relationship between the claimant and the NH and the NH’s wife. Accordingly, the claimant is entitled to child’s benefits on the NH’s account.

2. Opinion

QUESTIONS PRESENTED

You have asked for an opinion as to whether S~ (claimant), born to N~ (gestational mother) through the use of in vitro fertilization with anonymous egg and sperm donors, would be eligible for child’s benefits on the account of F~ (NH), who became the parent of the claimant pursuant to a Pennsylvania court order dated August XX, 2013.

You have also asked for an opinion as to whether K~ (K~), the NH’s wife, would be entitled to wife’s benefits on the NH’s account as the parent of the claimant.

OPINION

New York would recognize the Pennsylvania court order declaring the NH and K~ as the claimant’s parents. Under New York intestacy law, a child can inherit as a “non-marital child” if, as here, a court of competent jurisdiction issued an order of filiation declaring parentage. Thus, the claimant could inherit from the NH under the intestacy laws of New York State and, therefore, is considered the child of the NH under the Social Security Act (the Act) for the purposes of entitlement to child’s benefits, assuming the claimant meets all other requirements for these benefits.

Because the NH and K~ have a valid marriage, are both listed as the claimant’s parents in her birth certificate, both became parents pursuant to the Pennsylvania court order, and live together with the claimant, K~ would be entitled to wife’s benefits on the NH’s account, again assuming she meets all other requirements for these benefits.

BACKGROUND

An in vitro fertilization procedure was performed upon a donor egg with donor sperm, and a physician transferred the resulting embryo to the uterus of the gestational mother on February XX, 2013. The gestational mother resided in Pennsylvania, and intended to surrender custody of the resulting child to the NH and her same-sex partner, K~.

The NH and K~ were married in S~, New York, on July XX, 2013. K~ and the NH petitioned the L~ County Court of Common Pleas, Orphans’ Court Division, for a declaration that the NH and K~ are the parents of the child to be born to the gestational mother. On August XX, 2013, the L~ County Court issued an Order and Decree that the NH and K~ are the parents of the child to be born to the gestational mother, and that the child’s birth certificate would reflect such.

The gestational mother gave birth to the claimant on October XX, 2013, in L~ County, Pennsylvania. The claimant’s birth certificate lists the NH and K~ as the parents.

The claimant currently lives with the NH and K~ in S~, New York.

The NH has been receiving social security disability benefits since January 2016. On January XX, 2016, K~ filed an application for child’s benefits on the claimant’s behalf, with a protective filing date of December XX, 2015. At the same time, K~ filed for wife’s benefits on the NH’s record.

ANALYSIS

I. Child’s Benefits Under the Act

A. Federal Law Regarding Child’s Benefits

Section 202(d) of the Act allows the dependent “child” of an insured individual to collect child’s benefits on the record of the insured individual. See Act § 202(d); 42 U.S.C. § 402(d). For purposes of child’s benefits under the Act, a “child” is defined as the natural child, legally adopted child, stepchild, and, in limited instances, grandchild or stepgrandchild of an insured individual. Act §§ 202(d) and 216(e); 42 U.S.C. §§ 402(d) and 416(e).

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 is domiciled at the time such applicant filed the application for child’s benefits. Act § 216(h)(2)(A); 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1). Because the NH was domiciled in New York when the applications for child’s benefits were filed, New York’s law of intestate succession applies in determining the child’s status under section 216(h)(2)(A) of the Act.

B. New York State Law Regarding Intestate Succession of Non-Marital Children

New York intestacy law allows “issue” of a decedent to inherit if the individual died without a will. N.Y. Est. Powers & Trusts Law § 4-1.1 (McKinney 2016). “Issue are the descendents in any degree from a common ancestor,” and includes adopted children. N.Y. Est. Powers & Trusts Law § 1-2.10 (McKinney 2016). New York intestacy law also states that a non-marital child is the legitimate child of his mother. N.Y. Est. Powers & Trusts Law § 4-1.2(a)(1) (McKinney 2016).

New York courts have held that the gestational mother is the natural mother of a child. See McDonald v. McDonald, 608 N.Y.S.2d 477 (N.Y. App. Div. 2d Dept. 1994). Even where all parties intend for another individual, including a genetic mother, to be the legal mother, courts have required the genetic mother to obtain either an adoption or a court order to be deemed the legal mother. See T.V. v. New York State Dept. of Health, 929 N.Y.S.2d 139, 150-52 (N.Y. App. Div. 2d Dept. 2011); Doe v. New York City Bd. of Health, 782 N.Y.S.2d 180, 183-84 (N.Y. Sup. Ct. 2004); Arredondo by Arredondo v. Nodelman, 622 N.Y.S.2d 181 (N.Y. Sup. Ct. 1994).

Here, the NH was not the claimant’s gestational mother and therefore, was not the claimant’s natural mother. Additionally, the claimant is not an adopted child of the NH. Thus, at first analysis, the claimant is not the NH’s child under N.Y. Est. Powers & Trusts Law § 4-1.2(a)(1). However, because the NH obtained a Pennsylvania Order and Decree declaring that the NH and K~ are the claimant’s parents, we must determine whether a New York court would give full faith and credit to that decree to recognize that the claimant is the legitimate child of the NH.

C. 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. See U.S. Const. Art. IV, § 1; 28 U.S.C. § 1738; Baker v. Gen. Motors Corp., 522 U.S. 222, 231-32 (1998). Under the full faith and credit clause of the Constitution, a final judgment of one state, “if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualified for recognition throughout the land.” Baker, 522 U.S. at 233.

Similarly, under New York law, “full faith and credit establishes a rule of evidence requiring recognition of a prior out-of-State judgment, giving it res judicata effect and ‘thus avoiding relitigation of issues in one State which have already been decided in another.’” Luna v. Dobson, 97 N.Y.2d 178, 182-83 (2001) (internal citations omitted). In effect, New York is “required to give the same preclusive effect” to the Pennsylvania decree that Pennsylvania would under its law. Id. at 183; see also Matter of Doe, 793 N.Y.S.2d 878, 882 (N.Y. Sur. Ct. 2005) (“Where a judgment of a sister state is issued with jurisdiction of all parties, New York must afford it full faith and credit.” (internal citations omitted)).

New York courts have further held that:

If there had been an adjudication of paternity by a court with competent jurisdiction, we would be precluded from looking behind the judgment and we would be required to give full faith and credit to that judgment of our sister state. New York must recognize the validly rendered judgments of our sister states.

Robertson v. Collings, 421 N.Y.S.2d 999, 1001 (N.Y. Fam. Ct., Oneida Cnty. 1979) (citing U.S. Const. Art IV, § 1). Because a New York court would “be precluded from looking behind the judgment” – that is, would not consider whether the judgment conflicted with New York public policy – it would accept the Pennsylvania order for purposes of intestate succession, provided that the Pennsylvania Orphans’ Court had competent jurisdiction and that the judgment was validly rendered.

After analyzing the validity of the Pennsylvania judgment, we have concluded that it was valid and established a parent-child relationship between the claimant and the NH and K~.

Under Pennsylvania law, “[b]efore a court may determine a legal action, it must possess both subject-matter jurisdiction and jurisdiction of the person.” Schifano v. Schifano, 471 A.2d 839, 843 (Pa. Super. Ct. 1984).

A Pennsylvania court may exercise personal jurisdiction over a nonresident (such as the NH and K~) under certain circumstances. 42 Pa. Cons. Stat. § 5322 (2016). One such circumstance is where the nonresident individuals “[c]ontract[] to supply services or things in” Pennsylvania. Id. § 5322(a)(2). In the surrogacy agreement, the parties contracted for the gestational mother to give birth in a Pennsylvania hospital. It would appear, therefore, that the long-arm statute would confer personal jurisdiction over the parties. Moreover, a Pennsylvania court may exercise personal jurisdiction over a nonresident individual in a proceeding to determine parentage of a child if the individual submits to the jurisdiction of Pennsylvania. 23 Pa. Cons. Stat. § 7201 (2016); see also McCullough v. Clark, 784 A.2d 156, 157 (Pa. Super. Ct. 2001) (“A party may expressly or impliedly consent to a court’s personal jurisdiction.”). Here, the NH and K~ filed a joint petition with the gestational mother in the Pennsylvania Orphans’ Court seeking an order by the Orphans’ Court. Therefore, it would appear that the NH and K~ consented to the court’s personal jurisdiction.

Regarding subject-matter jurisdiction, Pennsylvania law vests the Orphans’ Court with jurisdiction over various subject matters, including decedents’ estates, guardianship, adoption, custody, birth records, and marriage licenses. See 20 Pa. Cons. Stat. §§ 711, 712. Section 712(3) provides the Orphans’ Court with jurisdiction over “any case where there are substantial questions concerning matters enumerated in section 711 and also matters not enumerated in that section.” 20 Pa. Cons. Stat. § 712(3). Thus, the Orphans’ Court has subject-matter jurisdiction to issue decrees regarding the parties’ parental rights. See In re I.L.P. & I.L.P. Joint Petition on Assisted Conception Birth Registration, 965 A.2d 251, 258 (Pa. Super. 2009) (Orphans’ Court has jurisdiction to issue a decree regarding the parental rights of the parties involved). We therefore believe that the Pennsylvania decree was valid because it was issued by a court that had both subject-matter jurisdiction and personal jurisdiction over the parties.

Thus, a New York court would give full faith and credit to the Pennsylvania decree that the NH and K~ are the claimant’s mothers. Accordingly, the claimant could inherit under New York’s intestate succession laws as the legitimate child of her mothers. See N.Y. Est. Powers & Trusts Law § 4-1.2(a)(1). Therefore, assuming the claimant satisfied the other statutory and regulatory requirements for such benefits, she is entitled to receive child’s benefits on the NH’s account.

II. Wife’s Benefits Under the Act

A. Federal Law Regarding Wife’s Benefits

Section 202(b) of the Act allows the “wife” of an insured individual to collect wife’s benefits on the record of the insured individual. See Act § 202(b); 42 U.S.C. § 402(b). For purposes of wife’s benefits under the Act, a “‘wife’ means the wife of an individual, but only if she (1) is the mother of his son or daughter, [and] (2) was married to him for a period of not less than one year immediately preceding the day on which her application is filed.” Act §§ 202(b), 216(b); 42 U.S.C. §§ 402(b), 416(b); 20 C.F.R. § 404.330.

SSA looks to the laws of the state where the insured had a permanent home at the time the application for benefits was filed to determine whether the claimant and insured were validly married. Act § 216(h)(1)(A)(i), 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Accordingly, we will look to the laws of New York to determine whether the NH and K~ were validly married.

B. New York State Law Regarding Same-Sex Marriage

Effective July 2011, the Marriage Equality Act amended New York Domestic Relations Law to provide 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 (McKinney 2016). Accordingly, the NH’s July 2013 marriage to K~ was valid for purposes of determining K~’s entitlement to wife’s benefits. See Program Operations Manual System (POMS) GN 00210.003B New York.

Further, for the same reasons as discussed above, supra Section I, New York would recognize K~ as the claimant’s mother and therefore, K~ is the NH’s wife and mother of the NH’s daughter for purposes of wife’s benefits on the NH’s account.

CONCLUSION

The NH’s marriage to K~ was valid under New York Law. New York would recognize the Pennsylvania court’s Order and Decree granting parental rights of the claimant to the NH and K~. Accordingly, the claimant is entitled to child’s benefits on the NH’s account and K~ is entitled to wife’s benefits on the NH’s account, assuming the other statutory and regulatory requirements for such benefits have been met.


Footnotes:

[1]

The Center for Disability and Program Support (CDPS) provided this office with a copy of the marriage license of K~ and H2~, and the birth certificates of H~ and A~. Additionally, CDPS provided a copy of a medical record from Dr. R~ and the CNY Fertility Center Team, and a consent form signed by K~ and H~ for the IVF procedure. This opinion is based on the facts as presented.

[2]

Section 216(e) also provides that a stepchild, grandchild or stepgrandchild may be eligible for benefits under certain circumstances. Act § 216(e).

[3]

A provision enacted in 2014 does provide for inheritance by children conceived after the death of a genetic parent, but is not applicable here. See N.Y. Est. Powers & Trusts Law § 4-1.3.

[4]

Although not New York’s top appellate court, the “Appellate Division is a single statewide court divided into departments for administrative convenience.” Mountain View Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918, 919-20 (2d Dept. 1984). Accordingly, precedents set by one department apply statewide until the Court of Appeals or the Appellate Division of another department pronounces a contrary rule. Id.

[5]

H2~ and the NH used an IVF procedure rather than an AID procedure. Nevertheless, some New York courts have considered N.Y. Dom. Rel. Law § 73 in connection with IVF as well, and have focused on the policy goal of protecting the legitimacy of children born to married couples via any method of assistive reproductive technology . See , e.g.,Yulia C. v. Angelo C., 32 N.Y.S.3d 860, 875 (N.Y. Sup. Ct. 2016) (“The facts of this case do not fit neatly within the rules set forth in [ N.Y. Dom. Rel. Law § 73], because the plaintiff utilized in vitro fertilization to conceive the subject children rather than artificial insemination. . . However, the policy goal of protecting the legitimacy of children born to married couples via alternative reproductive methods is the ultimate guidepost for the existing and developing legal framework on the issue. . .”). There is no analogous statute for IVF.

[6]

Notably, in Debra H.~., the biological mother and her partner had entered into a lawful civil union in the State of Vermont, and the court invoked the common law doctrine of comity to recognize the parenthood rights that were created under Vermont law by the couple’s lawful civil union. See Debra H. v. Janice R., 14 N.Y.3d at 598-601.

[7]

After Debra H., New York appellate courts also continued to apply the doctrine of comity to recognize custody and visitation rights in same-sex marriages performed under the laws of other jurisdictions. See, e.g., Counihan v. Bishop, 974 N.Y.S.2d 137 (2d Dept. 2013) (same-sex spouse of biological mother is parent of child conceived by artificial insemination during parents’ legal Connecticut marriage for purposes of visitation and custody under New York law); Kelly S. v. Farah M., 28 N.Y.S.3d 714 (2d Dept. 2016) (principles of comity require that if the biological mother’s former same-sex partner was recognized as the parent of children born to the couple under California law, then she must be recognized as the child’s parent in New York).

[8]

The petitioner in the BrookeS.B. case was seeking to obtain standing to petition for custody and visitation. In considering whether conferring standing upon an individual to seek custody or visitation of a child as a “parent” translates into conferring legal status as a parent to that child, at least one Family Court reasoned that it would be “simply inequitable, and not consistent with prevailing common law” to allow an individual to be a parent “for purposes of custody, visitation and child support, but without more.” A.F v. K.H., 57 N.Y.S.3d 352, 358 (N.Y. Fam. Ct. 2017).

[9]

The facts in the Claimants’ cases are analogous to the facts in Counihan, in that the Claimants were both conceived via artificial insemination and born to a same-sex marriage performed in Connecticut, although both had parents who lived in New York. See Counihan v. Bishop, 974 N.Y.S.2d at 138. Thus, Counihan provides further support for a finding that the NH is the Claimants’ parent. However, unlike the child in the Counihan case, the Claimants were conceived and born after the enactment of the MEA. Accordingly, the Claimants would be considered the children of the NH under the common law presumption of legitimacy, and a New York court would not need to apply the doctrine of comity to recognize rights stemming from the Connecticut marriage.


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http://policy.ssa.gov/poms.nsf/lnx/1500905035
PR 00905.035 - New York - 12/14/2018
Batch run: 12/14/2018
Rev:12/14/2018