Family Court, Ulster County, August 16, 2022

Claudia Brown for petitioner.

Ulster County Public Defender's Office for respondent.

By petition dated February 14, 2022, M.S. sought an order and judgment of parentage (assisted reproduction) for a baby being carried by A.B., due to be born on or about May 28, 2022. The parties appeared before Support Magistrate Thomas Gordon on April 22, 2022. On that date, Ms. S. was unrepresented and Ms. B. appeared with her attorney, Joseph Williams, Esq. The Support Magistrate adjourned the matter and appointed counsel to Ms. S., and parties and counsel appeared on April 29, 2022. On that date, Ms. B. indicated that she was not consenting to an order of parentage, but that she was waiving her right to a hearing and consenting to the Support Magistrate deciding the matter based upon the papers that had been filed. The Support Magistrate thereafter entered an order and judgment of parentage (assisted reproduction), holding that "upon the child's birth, A.B. and M.S. will be the legal parents of the child who is expected to be born on May 31, 2022, and upon the birth of such child, they shall forthwith assume responsibility for the child's maintenance and support."

A.B. now objects to the entry of the order and judgment of parentage (assisted reproduction), asserting that the Support Magistrate "erred when he decided this case solely on the basis of the 'Intrauterine Insemination Consent Form' attached to the Petition." Ms. B. argues that the form "is ambiguous and materially misleading and lacks all necessary and fair and sufficient notices to the signatories. There is nothing about this agreement that provides notice to me that I am the monumental act of conferring parental rights to a partner not biologically related to my then unborn child." Ms. B. asserts that "Magistrate Gordon should have conducted a fact-finding to fully flesh out the record."

When parties and counsel appeared before the Support Magistrate on April 29, 2022, Ms. B.'s attorney indicated that Ms. B. was not consenting to an order of parentage but was [*2]withdrawing her request for a hearing and would consent to the court making a decision based upon the papers that were filed. The Support Magistrate then spent time ensuring that Ms. B. was knowingly waiving her right to a hearing, and that{**77 Misc 3d at 1140} she understood, absent a hearing, that the Support Magistrate intended to enter an order and judgment of parentage based on the papers before him. The Support Magistrate clearly stated that if Ms. B. was

"not going to have a hearing, then I am going to make an order of parentage. She has the right to a hearing . . . Ms. B., you do have the right to a hearing. You do have the right to present evidence to the contrary to say I should not make an order of parentage . . . that there wasn't an agreement."

The Hearing Officer then explained to Ms. B. what would be required for him to make an order of parentage, including that he would have to find at the time of the conception of the child, that Ms. B. and Ms. S. had an agreement that they both would be parents to the child. The Support Magistrate explained that Ms. S.'s name would be on the birth certificate and again told Ms. B. that "you have the right to present evidence to show that there was not this intent. There was not this agreement." "If you waive that right to a hearing, based on the evidence presented to me, the documents presented to me, I will make an order of parentage."

Ms. B. indicated that she understood the Support Magistrate and a break was then taken in the proceeding to allow Ms. B. to confer with her attorney. Once back on the record, Ms. B.'s attorney stated:

"I've had an opportunity to speak with my client. She understands that she has the right to move forward with a hearing on this matter if she wanted to. She does not wish to move forward with a hearing. She's waiving her right to have that hearing and understands that means that the court is going to decide the parentage petition based on the papers that were submitted."

It appears to this court that Ms. B. made an informed decision to waive her right to a hearing. The Support Magistrate was very clear that Ms. B. had a right to a hearing, and that if she chose not to have a hearing he intended to enter an order and judgment of parentage. Ms. B. acknowledged her understanding, was given time to speak with her attorney, and thereafter waived her right to a hearing and consented to the Support Magistrate making a determination based upon the papers before him.

The "Child Parent Security Act," set forth at article 5-C of the Family Court Act, enacted into law effective February 15,{**77 Misc 3d at 1141} 2021, is intended to "legally establish a child's relationship to his or her parents where the child is conceived through assisted reproduction." (Family Ct Act § 581-101.) The Act was born, at least in part, from the acknowledgment that it was time for the laws of this state to provide "equality for same-sex parents and [to provide] the opportunity for their children to have the love and support of two committed parents" regardless of the fact that "only one can be biologically related to the child." (Matter of Brooke S.B. v Elizabeth A.C.C., 28 NY3d 1, 22-23, 25 [2016].)

In order for a petition for an order and judgment of parentage to be granted when there is a case involving assisted reproduction and the parties are not married, "the consent to the assisted reproduction must be in a record in such a manner as to indicate the mutual agreement of the intended parents to conceive and parent a child together." (Family Ct Act § 581-304 [b].) Attached to the petition in the instant matter was an "Intrauterine Insemination Consent Form" wherein A.B. was listed as the "patient" and M.S. was listed as the "partner." Both Ms. B. and Ms. S. placed their initials in several locations throughout the document in spaces calling for the initials of both the "patient" and the "partner." Paragraph 7 of the form reads as follows:

"Responsibility of Offspring. I/We understand that, if a woman undergoes intrauterine [*3]insemination with the consent of her husband/partner, the husband/partner is treated in law as if he were the natural father of a child thereby conceived. I/We further agree

"a) That any child or children conceived or born as a result of the intrauterine insemination shall be my/our legitimate child and heirs of my/our body; and

"b) That such child or children conceived or both shall be considered in all respects including descent and distribution of my property, a child or children o[f] my/our body(ies)."

Both parties signed the form. The Support Magistrate made it clear to both parties on April 29, 2022, that he considered the language in the form as sufficient to establish the mutual agreement, intent and consent required to enter an order and judgment of parentage. The Support Magistrate stated unequivocally to Ms. B. that "[i]f you waive that right to a {**77 Misc 3d at 1142}hearing, based on the evidence presented to me, the documents presented to me, I will make an order of parentage." By waiving her right to present evidence to the contrary, Ms. B. lost the ability to claim, after the fact, that the form failed to establish the requisite mutual consent and intent. The court will not consider any factual arguments set forth in either the objection or the rebuttal as the time to make such arguments would have been at a hearing. However, the right to a hearing was waived.

This case is exactly the type of situation the statute was designed to address. Had the parties been engaged in a heterosexual relationship, had the child been conceived as a result of intercourse, and had both parties been biologically related to the child, the non-gestating parent would have rights by virtue of biology. Here, a same-sex couple made a decision to have a child together, although only one of the parents would be biologically related to the child. The fact that the parties' relationship ended prior to the birth of the child does not terminate the non-gestating party's right to parent the child. Rather, the law now provides a same-sex, non-gestating parent with the same protections as those that would be afforded to a non-gestating parent who is biologically related to the child, provided that the intent to act as co-parents was clearly manifested at the time of conception. In this case, the requisite intent and consent is found in the "Intrauterine Insemination Consent Form" executed by both parties, and Ms. B. waived her right to argue otherwise.

For the reasons set forth above, the objection is denied.