Unenforceable Surrogacy Agreements Require a Best-Interests Hearing in Article 5-C Parentage Determinations

1. Introduction

Matter: Matter of Baby A. (Mary B.L.--Robert A.L.) (4th Dept, May 1, 2026).
Parties: Intended parents/petitioners Mary B.L. and Robert A.L.; respondent/surrogate Isabella F.; Attorney for the Children (AFC) as appellant; DSS involved as an interested party due to placement.
Context: Petitioners sought a pre-birth judgment of parentage under Family Court Act article 5-C based on a surrogacy agreement. After discovery that Robert had not signed the initial agreement and lacked awareness of the proceeding, Family Court rescinded the original parentage judgment. A later vacatur revived the earlier posture, and Family Court ultimately issued a new 2025 judgment of parentage declaring petitioners the only legal parents and ordering immediate transfer of custody—without conducting a live hearing and without weighing the children’s best interests.

Core issues on appeal:

  • Whether the AFC had authority to appeal in an article 5-C parentage proceeding where the adult parties agree on intended parentage.
  • Whether, when a surrogacy agreement fails statutory “material requirements” and is unenforceable, the court must consider the children’s best interests (and whether that requires a hearing rather than affidavits).

2. Summary of the Opinion

The Fourth Department unanimously reversed the 2025 order and judgment of parentage and remitted for further proceedings. The court held:

  • An article 5-C proceeding is akin to a paternity/parentage proceeding, not a custody contest between existing legal parents, and an AFC may appeal to protect the children’s interests where best interests are statutorily relevant.
  • Where a surrogacy agreement does not meet material requirements of article 5-C, it is unenforceable and the court must determine parentage based on intent while taking into account the best interests of the children (Family Ct Act § 581-407).
  • Because both surrogacy agreements were unenforceable (one unsigned by Robert; the second executed too late), Family Court erred by treating intent as dispositive and by not conducting a meaningful best-interests inquiry. The matter must proceed to an immediate hearing considering intent and best-interests evidence.

3. Analysis

3.1 Precedents Cited

Matter of White v Wilcox

The court cited Matter of White v Wilcox, 109 AD3d 1145 (4th Dept 2013), lv dismissed in part & denied in part 22 NY3d 1085 (2014), for the proposition that in traditional paternity proceedings an AFC may appeal on behalf of a child. This analogy mattered because petitioners argued the appeal should be dismissed given that the surrogate and intended parents agreed about parentage and were the only “necessary parties.”

By invoking White v Wilcox, the Fourth Department framed article 5-C parentage adjudication as a proceeding that determines legal status (who is a parent), not merely custody allocation among already-established parents. That framing justified an independent role for the child’s representative—even where adult parties are aligned—because the child’s legal interests may diverge from adult preferences when statutory best-interests review is triggered.

Matter of Anonymous

The court cited Matter of Anonymous, 85 Misc 3d 676 (Sup Ct, NY County 2024), in support of the proposition that when enforceability defects exist, article 5-C requires consideration of best interests in the parentage determination. The citation reinforced that § 581-407 is not a discretionary “equities” add-on; it is a mandated analytical step when the agreement fails material statutory requirements.

3.2 Legal Reasoning

The decision turns on a careful reading of the statutory structure of article 5-C, particularly the distinction between: (a) enforceable surrogacy agreements, which allow streamlined issuance of parentage judgments based on statutory compliance; and (b) unenforceable agreements, which shift the case into a different adjudicatory mode governed by § 581-407.

(a) Appealability and the AFC’s role

Although § 581-203(b) does not list an AFC among “necessary parties,” the court emphasized that the AFC’s appointment is contemplated where the agreement is defective and best interests become relevant. The court relied on:

  • Family Ct Act § 241 (authority to appoint counsel/AFC to protect children’s interests), and
  • the logic of parentage litigation (like paternity) where a child’s rights may require advocacy even without adult-party adversity.

The court’s reasoning rejects a “party-consent” model of parentage in defective-surrogacy cases: adult unanimity does not eliminate the statutory obligation to assess best interests, nor does it nullify the AFC’s standing to seek appellate review of an order that allegedly bypassed that obligation.

(b) Material statutory defects and the mandatory best-interests inquiry

The Fourth Department identified two independent “material requirement” failures:

  • First agreement unenforceable: it lacked Robert’s signature, violating signing/formation requirements (Family Ct Act § 581-403[a][1], [d]; and relatedly § 581-402[b][3]).
  • Second agreement unenforceable: it was not executed before commencement of medical procedures in furtherance of embryo transfer (Family Ct Act § 581-403[b]).

Once the court concluded (as it did) that the agreements were not enforceable, § 581-407 governed: the court “shall determine parentage based on the intent of the parties, taking into account the best interests of the child.” The Fourth Department treated “shall” as imposing a non-waivable duty: intent matters, but it cannot be treated as exclusive or automatically dispositive when statutory compliance is absent.

(c) Why affidavits were insufficient here

Family Court vacated the 2023 parentage judgment and issued the 2025 judgment after permitting affidavits “in lieu of holding the hearing,” over AFC objection, reasoning that because intent was undisputed, best interests need not be considered. The Fourth Department rejected that approach because § 581-407 expressly requires a best-interests component once the agreement is unenforceable.

While the opinion does not announce an absolute rule that affidavits can never suffice in any context, it effectively holds that where best interests are contested or meaningful best-interests facts must be developed—especially when children have lived for years in a foster placement—Family Court must conduct a prompt evidentiary hearing capable of producing a record on:

  • the children’s current circumstances and attachments,
  • stability and continuity of care,
  • the practical consequences of an “immediate transfer,” and
  • any other factors bearing on welfare, consistent with best-interests jurisprudence.

3.3 Impact

The decision establishes a clear operational rule for New York surrogacy parentage litigation under article 5-C: when a surrogacy agreement is unenforceable for failure to meet material statutory requirements, the court must conduct a best-interests-informed parentage adjudication under § 581-407, and that inquiry cannot be skipped merely because adult intent is unanimous.

Likely downstream effects include:

  • Greater procedural rigor in defective-surrogacy cases: courts will be expected to build a hearing record on best interests before issuing (or ordering execution of) parentage judgments that entail immediate custody transfers.
  • Enhanced role for the AFC: even where not a “necessary party,” AFC participation (and appellate review) will be more defensible when § 581-407 is in play.
  • Compliance incentives: intended parents, counsel, and agencies will have stronger incentives to ensure strict statutory compliance (timing, signatures, formalities) to avoid triggering § 581-407’s best-interests overlay and attendant uncertainty.
  • Child-centered correction mechanism: in cases involving delays, rescissions, or placements (as here, where children lived with a foster family for over two years), the decision prevents the parentage judgment mechanism from functioning as an automatic “handover order” untethered to welfare evidence when statutory prerequisites were not satisfied.

4. Complex Concepts Simplified

  • Judgment of parentage: a court order establishing who the child’s legal parents are (a status determination), which can have immediate consequences for custody, decision-making, and inheritance.
  • Enforceable vs. unenforceable surrogacy agreement: if the agreement satisfies article 5-C’s formal “material requirements” (e.g., signatures, timing before medical procedures), the court can enforce it and issue a parentage judgment with relative predictability. If not, the agreement cannot be enforced as written.
  • “Intent of the parties”: what the surrogate and intended parents meant and agreed to regarding who would be the child’s parents. Under § 581-407, intent remains central but is not the only consideration when the agreement is defective.
  • Best interests of the child: the legal standard focusing on the child’s welfare (stability, safety, emotional bonds, and overall well-being). Here it functions as a required input into the parentage determination when the statutory framework is not satisfied.
  • AFC (Attorney for the Children): a lawyer appointed to represent the children’s interests. This case confirms that the AFC may pursue appellate review in an article 5-C proceeding when the child’s welfare must be considered under § 581-407.

5. Conclusion

Matter of Baby A. (Mary B.L.--Robert A.L.) clarifies that article 5-C does not permit courts to treat intended-parent intent as automatically determinative when a surrogacy agreement fails material statutory requirements. In that circumstance, Family Court must apply § 581-407 by determining parentage based on intent while taking into account the children’s best interests, and it must do so on an appropriate evidentiary record—here, by holding an immediate hearing rather than deciding solely on affidavits. The opinion also fortifies the AFC’s capacity to participate and appeal in defective-surrogacy parentage adjudications, ensuring that statutory best-interests protections remain meaningful even when all adult parties agree.