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.
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.
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.
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 24, 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.
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.