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statutory law
defendantwillstatutory law

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Perry-Rogers v. Fasano, 276 A.D.2d 67, 715 N.Y.S.2d 19, 2000 N.Y. Slip Op. 09070

Facts

In April 1998, Deborah Perry-Rogers and Robert Rogers began an in vitro fertilization program, but due to a mix-up, their embryos were implanted into Donna Fasano, who gave birth to Akeil Richard Rogers, the Rogerses' biological son. The Fasanos were informed of the mistake shortly after the implantation and took no action until the Rogerses initiated legal proceedings. A visitation agreement was later signed, but the Fasanos sought to enforce it after the Rogerses were granted custody of Akeil.

On December 29, 1998, Donna Fasano gave birth to two male infants, of two different races. One, a white child, is concededly the Fasanos' biological child, named Vincent Fasano. The other, initially named Joseph Fasano, is a black child, who subsequent tests confirmed to be the Rogerses' biological son, now known as Akeil Richard Rogers.

Issue

The main legal issues were whether the gestational mother and her husband had standing to seek visitation rights and whether the visitation agreement could be enforced.

However, on this issue we will not simply adopt the Rogerses' suggestion that no gestational mother may ever claim visitation with the infant she carried, in view of her status as a 'genetic stranger' to the infant.

Rule

The court ruled that under New York law, only parents, grandparents, and siblings by whole or half-blood have the right to seek visitation, and that the gestational mother and her husband, being genetic strangers to the child, lacked standing.

Under New York statutory law, the only people who have the right to seek visitation are parents (Domestic Relations Law §§ 70, 240), grandparents (Domestic Relations Law §§ 71, 240) and siblings related by whole or half-blood (Domestic Relations Law § 72).

Analysis

The court applied the rule by determining that the Fasanos, despite being the gestational mother and her husband, did not have the legal status of parents due to the circumstances of the mix-up at the fertility clinic. The court emphasized that the Rogerses were the genetic parents and had rightful custody, while the Fasanos' claim to visitation was unsupported by statutory law.

However, we recognize that in these rather unique circumstances, where the Rogerses' embryo was implanted in Donna Fasano by mistake, and where the Fasanos knew of the error not long after it occurred, the happenstance of the Fasanos' nominal parenthood over Akeil should have been treated as a mistake to be corrected at soon as possible.

Conclusion

The court reversed the order granting visitation to the Fasanos and affirmed the custody order in favor of the Rogerses, modifying it to require the Rogerses to correct their filing error.

Accordingly, the order of the Supreme Court, New York County (Diane Lebedeff, J.), entered February 2, 2000, which granted defendants visitation with the infant Joseph Fasano, now known as Akeil Richard Rogers, should be reversed, on the law, without costs, and the application for an order of visitation denied.

Who won?

The prevailing party was the Rogerses, as the court upheld their legal custody of Akeil and denied the Fasanos' request for visitation based on their lack of standing.

The Rogerses assert that over the next few months, the IAS court issued oral 'visitation orders' in apparent reliance upon the visitation agreement, and directed that a full forensic psychological evaluation of the parties and their infants be conducted by two sets of mental health experts.

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