We are asked to decide whether it was error for Family Court to deny the petition of a 57-year-old male to adopt a 50-year-old male with whom he shares a homosexual relationship.
Appellants are two adult males who have resided together continuously for more than 25 years. The older of the two, who was 57 years of age when this proceeding was commenced, submitted a petition to adopt the younger, aged 50 at the time. The two share a homosexual relationship and desire an adoption for social, financial and emotional reasons.
The Appellate Division unanimously affirmed, without opinion, and granted leave to appeal to this court. We now affirm for the reasons that follow.
In imitating nature, adoption in New York, as explicitly defined in section 110 of the Domestic Relations Law, is "the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent." (Emphasis supplied.) It is plainly not a quasi-matrimonial vehicle to provide nonmarried partners with a legal imprimatur for their sexual relationship, be it heterosexual or homosexual. (See, e.g., Stevens v Halstead, 181 App Div 198.) Moreover, any such sexual intimacy is utterly repugnant to the relationship between child and parent in our society, and only a patently incongruous application of our adoption laws — wholly inconsistent with the underlying public policy of providing a parent-child relationship for the welfare of the child (Matter of Malpica-Orsini, 36 N.Y.2d 568, 571-572, app dsmd sub nom. Orsini v Blasi, 423 U.S. 1042; Matter of Upjohn, supra; Howe, op. cit., 17 Family LQ, at pp 176-179; Huard, op. cit., 9 Vand L Rev, at pp 748-749) — would permit the employment of adoption as the legal formalization of an adult relationship between sexual partners under the guise of parent and child.
Indeed, although the statutory prerequisites may be less compelling than in the case of the adoption of a minor, an adult adoption must still be "in the best interests of the [adoptive] child" and "the familial, social, religious, emotional and financial circumstances of the adoptive parents which may be relevant" must still be investigated. (Domestic Relations Law, § 116, subds 2, 3, 4.) Neither the explicit statutory purpose nor criteria have been diluted for adult adoptions, and this court has no basis for undoing what the Legislature has left intact.
Moreover, deference to the narrow legislative purpose is especially warranted with adoption, a legal relationship unknown at common law. (Betz v Horr, 276 N.Y. 83, 86-87; Matter of Thorne, 155 N.Y. 140, 143.) It exists only by virtue of the legislative acts that authorize it. Although adoption was widely practiced by the Egyptians, Greeks and Romans, it was unknown in England until the Adoption of Children Act of 1926, more than 50 years subsequent to the enactment of adoption laws in New York. (See, generally, Huard, op. cit., 9 Vand L Rev 943; see, also, Matter of Clark, 87 Cal. 638, 641 — adoption was "unknown to the common law" and "repugnant to [its] principles".) Adoption in this State is "solely the creature of, and regulated by, statute law" (Matter of Eaton, 305 N.Y. 162, 165) and "`[t]he Legislature has supreme control of the subject'". (Carpenter v Buffalo Gen. Elec. Co., supra, at p 107,
Here, where the appellants are living together in a homosexual relationship and where no incidents of a parent-child relationship are evidenced or even remotely within the parties' intentions, no fair interpretation of our adoption laws can permit a granting of the petition. Adoption is not a means of obtaining a legal status for a nonmarital sexual relationship — whether homosexual or heterosexual. Such would be a "cynical distortion of the function of adoption." (Matter of Adult Anonymous II, 88 A.D.2d 30, 38 [Sullivan, J. P., dissenting].) Nor is it a procedure by which to legitimize an emotional attachment, however sincere, but wholly devoid of the filial relationship that is fundamental to the concept of adoption.
While there are no special restrictions on adult adoptions under the provisions of the Domestic Relations Law, the Legislature could not have intended that the statute be employed "to arrive at an unreasonable or absurd result." (Williams v Williams, 23 N.Y.2d 592, 599.) Such would be the result if the Domestic Relations Law were interpreted to permit one lover, homosexual or heterosexual, to adopt the other and enjoy the sanction of the law on their feigned union as parent and child.
There are many reasons why one adult might wish to adopt another that would be entirely consistent with the basic nature of adoption, including the following: a childless individual might wish to perpetuate a family name;
If the adoption laws are to be changed so as to permit sexual lovers, homosexual or heterosexual, to adopt one another for the purpose of giving a nonmatrimonial legal status to their relationship, or if a separate institution is to be established for the same purpose, it is for the Legislature, as a matter of State public policy, to do so. Absent any such recognition of that relationship coming from the Legislature, however, the courts ought not to create the same under the rubric of adoption.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Having concluded in People v Onofre (51 N.Y.2d 476, 490) that government interference with a private consensual homosexual relationship was unconstitutional because it would not "do anything other than restrict individual conduct and impose a concept of private morality chosen by the State", the court now inconsistently refuses to "permit the employment of adoption as the legal formalization of an adult relationship between sexual partners under the guise of parent and child." (Majority opn, at p 236.)
Under that article the relationship of parent and child is not a condition precedent to adoption; it is rather the result of the adoption proceeding. This is clear from the provisions of sections 110 and 117. The second unnumbered paragraph of section 110 defines "adoption" as "the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other person," (emphasis supplied) and section 117, which spells out the "effect of adoption," provides in the third unnumbered paragraph of subdivision 1 that, "The adoptive parents or parent and the adoptive child shall sustain toward each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation including the rights of inheritance from and through each other and the natural and adopted kindred of the adoptive parents or parent" (emphasis supplied).
Contrary to the suggestion of the majority that the adoption statute must be strictly construed (majority opn, at p 238), it "has been most liberally and beneficently applied" (Matter of Malpica-Orsini, 36 N.Y.2d 568, 572, app dsmd sub nom. Orsini v Blasi, 423 U.S. 1042). True, Stevens v Halstead (181 App Div 198) held its use for the purpose of passing property from a 70-year-old physically infirm man to a married 47-year-old woman with whom he was living in an adulterous relationship to be improper. But that holding was predicated on the conception that it was "against public policy to admit a couple living in adultery to the relation of parent and child" and because "[t]his meretricious relationship, and the undue influence which imposed the will of defendant on decedent, condemn the adoption." (Id., at p 201.) Here, however, there is no suggestion of undue influence and the relationship, which by the present decision is excised from the adoption statute's broad wording, has, since the Onofre decision, been subject to no legal impediment. That it remains morally offensive to many cannot justify imposing upon the statute a limitation
What leads to the majority's conclusion that the relationship of the parties "is utterly incompatible with the creation of a parent-child relationship between them" (at p 239) is that it involves a "nonmarital sexual relationship" (at p 238). But nothing in the statute requires an inquiry into or evaluation of the sexual habits of the parties to an adult adoption or the nature of the current relationship between them. It is enough that they are two adults who freely desire the legal status of parent and child. The more particularly is this so in light of the absence from the statute of any requirement that the adoptor be older than the adoptee, for that, if nothing else, belies the majority's concept that adoption under New York statute imitates nature, inexorably and in every last detail.
Under the statute "the relationship of parent and child, with all the personal and property rights incident to it, may be established, independently of blood ties, by operation of law" (Matter of Malpica-Orsini, 36 NY2d, at pp 571-572); existence of a parent-child relationship is not a condition of, but a result of, adoption. The motives which prompt the present application (see n 1 to majority opn) are in no way contrary to public policy; in the words of Mr. Justice Holmes, they are "perfectly proper" (Collamore v Learned, 171 Mass. 99, 100). Absent any contravention of public policy, we should be "concerned only with the clear, unqualified statutory authorization of adoption" (Bedinger v Graybill's Executor, 302 S.W.2d 594, 599 [Ky]; Matter of Berston, 296 Minn. 24, 27) and should, therefore, reverse the Appellate Division's order.
Order affirmed, with costs.