TN 15 (10-16)

PR 00905.042 Pennsylvania

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

Date: June 21, 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. §