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.