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):
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.