Manhattan couple sues to get their names on birth certificate of boy born through surrogate
Written by Barbara Ross - NYDailyNews.com
January 28, 2016
We did it! He's OURS!!
That's what a Manhattan couple wants the whole world — and the legal system — to know about a little boy born last summer in Brooklyn to a surrogate mother.
Angelina and Steven Kates have asked the courts to order the city Department of Health to change Michael Kates' birth certificate to list them, as his parents, not the gestational mother, Elena Klimova, and her husband, Aleksandr.
Klimova, who normally lives in Volgograd, Russia, says in an affidavit that she was happy to carry the boy through his gestational period as a favor to her cousin, Angelina, and she received no compensation from the couple.
New York is one of three states where it is still illegal to pay surrogate mothers who give birth to other people's babies.
Court papers show that a doctor at Northshore Hospital inserted the Kates' embryo into Klimova's uterus in November 2014.
"I am neither genetically nor emotionally the child's parent. I do not wish to assume any legal or finance responsibility for the child," Klimova says in an affidavit. She says she also does not wish to have the child "eligible to inherit from my estate."
"I have children of my own, who are genetically related to me, and I do not want to be named as a parent of child to whom I have no genetic connection and no interest in parenting," she says.
Steven Kates, a real estate executive, said that because Klimova is married, New York law also presumes that her husband, Aleksandr Klimova, is the father, but court records show that he, too, relinquished any right to the baby who was born July 25 in Lutheran Medical Center in an affidavit.
Angelina Kates, 36, says in her affidavit that she is unable to have children "because of medical and psychological reasons" which are not explained.
Lawyers say all parents who entrust their embryos to surrogate mothers in New York must go to court to get their child's birth certificates corrected and their own names added. Other states that are friendlier to surrogacy births allow the genetic parents to do that before the baby is born.
Melissa Brisman, a prominent New Jersey lawyer in the infertility field who is representing the Kateses, argues in their court papers that recent court decisions have paved the way for genetic parents in New York to do this before the birth.
Elizabeth Falker, a fertility lawyer in New Rochelle, said New York's laws are "so confusing" that usually lawyers wait until after the baby is born and then they take their petition to Family Court to get a declaration of parenthood.
Brisman took the Kates’ case to state Supreme Court where she asked for a court order to amend the birth certificate.
City officials said this kind of procedure is rare.
"These types of cases happen infrequently and we don't see more than one a year, generally," said Julien Martinez, a spokesman for the city Health Department which registers all birth certificates.
"Our laws really need to be updated," Assemblywoman Amy Paulin said Thursday.
She has 27 co-sponsors on a bill that would allow genetic parents to compensate surrogate mothers for their time, effort and pain as well as pay for their medical expenses and living arrangements during their pregnancies.
The bill also allows "intended" parents to go into court before the birth and ask that their names be put on the birth certificate from the moment the child arrives.
The bill also has supporters in the Senate including Brad Hoylman, a Manhattan Democrat who adopted a baby girl in California with his husband, but Paulin said she doubted it would pass this year.
The measure is opposed by the Catholic Conference, which argues that it would legalize baby-selling.