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Wednesday, November 17, 2010

Genetic Mom Ignored On Birth Certificate

In a startling New York case sure to raise eyebrows, a Nassau County Supreme Court judge refused to order the issuance of a baby's birth certificate naming the genetic mother -- the mother whose egg produced the baby -- as the mother instead of the surrogate mother.  Notably, this decision was rendered despite the agreement among the genetic mother and surrogate mother than the genetic mother's name should be on the birth certificate.  (Before you read further or click the link, be advised that the genetic parents are in the process of formally adopting the child who is 100% the product of their genetic material.)

This decision does recognize the role of the State Legislature in crafting a solution. Nevertheless, the decision voices two troubling paradoxes.  The first is that a baby can have two mothers under the law.  This involves a disturbing uncertainty over how one defines "mother."  (Currently the New York Domestic Relations Law contemplates both a genetic and surrogate mother.)  The second is that there can be only one paternal genetic contributor -- in plain English, the father -- and that very much unlike the maternal genetic contributor (i.e., the genetic mother, as distinguished from the "carrier" or the surrogate mother whose uterus is subleased), the man who makes a genetic contribution faces an 18-year-long financial obligation.   Yet a woman whose contribution is equal, but for the missing Y chromosome, not only faces no such obligation but may actually endure uncertainty over whether her maternity may be recognized by the courts.

This sounds like a violation of the equal protection clause of the Fourteenth Amendment, by fundamentally disparately treating male and female genetic contributors.  It raises another question -- that of what types of relationships by non-genetic parents can give rise to those people having "rights" over a child who is not theirs?  Will we now have scheming nannies seeking to shake down their wealthy employers by charging that they should be declared "the real parents."  What about jealous -- or plainly evil -- grandparents, in-laws or other miscreants? 

The issue, by extension, becomes one of how the bonafide parental rights can be eroded, either by jealous caregivers, extortionists and criminals, or the courts.

This is very serious.  There cannot be a more bedrock, fundamental human right than the right to be a parent and to care for one's own child.  Any legislative or judicial interference with such a right, especially in this Nassau County case where the natural parents had the support of the surrogate, must be viewed with alarm and responded to with alacricity.   This case will raise new issues of how our society, laws and courts define a mother and father


 Eric Dixon is a New York lawyer who provides legal analysis, litigation stress consulting and strategic analysis through his firm, Eric Dixon LLC.  Mr. Dixon has been a New York lawyer since graduating from Yale Law School in 1994.  Mr. Dixon has represented over two dozen political candidates and organizations on election law and policy matters.  Mr. Dixon opines regularly on public policy and legal issues and is available for comment and consultation at edixon@NYBusinessCounsel.com and by phone at 917-696-2442. 

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