Child of lesbian married couple presumed to be child of (now ex-)spouse as well as of birth mother

From last week’s New York trial court decision in Wendy G-M. v. Erin G-M., 2014 WL 1884485 (May 7) (some paragraph breaks added):

In this divorce action, a child conceived from artificial insemination was born during the marriage. The court must now determine whether the spouse who did not give birth to the child (the non-biological spouse), is a parent of the child under New York’s longstanding presumption that a married couple are both parents of a child born during their marriage.

The birth mother and her spouse were married in a civil ceremony in Connecticut, before New York enacted its Marriage Equality Act [which went into effect in July 2011 -EV] …. [Footnote: The marriage of same-sex couples legally married in other jurisdictions is recognized in New York[, and was even before the Marriage Equality Act -EV].] The couple decided to have a child and in October 2011, they both signed a consent form agreeing to artificial insemination procedures. In the consent form, the birth-mother authorized the physician to perform artificial insemination on her, and the spouse requested the doctor to perform the procedure. The document also reads:

We declare that any child or children born as a result of a pregnancy following artificial insemination shall be accepted as the legal issue of our marriage.

The document is signed by the birth-mother, the spouse, and the physician, but there is no acknowledgment to the signatures. The spouse paid for the sperm donation and executed a consent form that allowed the purchased sperm to be used for the artificial insemination of the birth-mother. Both parties underwent artificial insemination for almost two years, until the procedure succeeded on the birth-mother; the spouse then discontinued her treatments.

The fertility clinic records demonstrate that the birth-mother and the spouse were both involved in appointments. The spouse attended the pre-birth classes, including breast feeding, baby care, and CPR classes. The spouse participated in the baby showers. The birth-mother celebrated the impending birth through a Facebook posting which said:

This is our year!!! Our daughter will lawfully have two mommies when she arrives and a family that’s recognized wherever we go in the U.S. I love you!

When you go through fertility and have a partner, they have to sign off and agree to the fertility treatments so that there is NO question that you’ve both agreed to have a child.

The spouse was present at the birth of the child and the couple jointly decided the name of the child. When the hospital officials asked for information on the parents, both participated in the discussions and the birth mother acknowledged that the spouse was the parent of the child. The child was given a hyphenated surname of the two women, with the spouse’s name listed first. The birth certificate for the child lists both as the parents of the child.

After the birth of the child, citing marital trouble, the spouse left the household, in her words, to “not cause undue stress or potential other problems.” The child only lived in the same household with the two women for one week before they established separate households. The action for divorce was commenced by the birth-mother in December 2013, less than then three months after the birth of the child.

Before and after commencement, the birth-mother would not permit her spouse to visit with the child. The spouse then filed the instant request for a variety of relief, including access to the child, maintenance, and attorney fees.

The court then had to decide whether the now ex-spouse, alongside the birth mother, was entitled to be treated as a legal parent of the child.

1. A New York statute provides that,

Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, birth child of the husband and his wife for all purposes….

The aforesaid written consent shall be executed and acknowledged by both the husband and wife and the physician who performs the technique shall certify that he had rendered the service.

Given New York’s Marriage Equality Act, the statute would apply equally to same-sex spouses; but the court concluded that the consent was invalid, because (quoting New York’s high court) “When there is no acknowledgment at all, it is evident that one of the purposes of the acknowledgment requirement — to impose a measure of deliberation and impress upon the signer the significance of the document — has not been fulfilled…. [T]he lack of an acknowledgment renders the signed consent form, although undisputedly executed by the birth mother and her spouse, ineffective under [the statute].”

2. Nonetheless, the court held, the longstanding presumption of paternity in a marriage — the presumption that a husband is the father of children born to his wife during the marriage — should be applied here, again given the Marriage Equality Act (and the fact that the Act made the parties’ relationship :

The pervasive and powerful common law presumptions that link both spouses in a marriage to a child born of the marriage-the presumption of legitimacy within a marriage and the presumption of a spouse’s consent to artificial insemination-apply to this couple. This court holds that the non-biological spouse is a parent of this child under the common law of New York as much as the birth-mother.

The presumption is rebuttable, for instance if “[t]he birth-mother could produce evidence that she never intended her spouse to be the parent of the [child born through artificial insemination],” or if the spouse provides “evidence that the birth mother failed to obtain any consent prior to the conception.” But absent such rebuttal, children born through artificial insemination during a same-sex marriage are treated as the children not just of the birth mother, but also of her spouse.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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