New York Trial Judge: Lesbian Spouse of Bio Mom is a Mother of Their Child Conceived Through Donor Insemination

This one would seem to be a no-brainer, but surprisingly the issue is not entirely clear even as we near the third anniversary of New York State’s Marriage Equality Law, which says that same-sex marriages and different-sex marriages are supposed to be treated equally for all purposes under New York Law. What happens if two women marry, decide to have a child through donor insemination, and then have a parting of the ways shortly after the child is born? Can the biological mother insist on exclusive parental rights and exclude her spouse from contact with the child? If the Marriage Equality Law means anything, the answer to that question should be no.

So it is a bit surprising that it took Monroe County Supreme Court Justice Richard A. Dollinger 28 pages to explain why he concluded that non-bio Mom is a parent who should be treated as such in the divorce proceeding with an equal claim to consideration for custody and visitation rights. The opinion is denominated as Wendy G-M v. Erin G-M (May 7, 2014). The women married in Connecticut before the New York law was enacted, but decided to have their child in October 2011, several months after the N.Y. law had gone into effect. They both signed a consent form agreeing to donor insemination procedures, as did their doctor, but the form was not witnessed and notarized and thus fell short of a New York statutory requirement that such a form be formally “acknowledged” to be valid. Both women participated in donor insemination, but once the birth mother became pregnant, the other mother ceased trying. They both attended appointments with the fertility clinic, they both attended pre-birth classes, and behaved as a family, including the birth mother’s posting on facebook of an excited announcement, stating “Our daughter will have two mommies when she arrives and a family that’s recognized wherever we go in the U.S.” A bit too optimistic, perhaps, as a majority of states still do not recognize same-sex marriages from other states.

The other Mom was present during childbirth, and the couple “jointly decided the name of the child.” Hospital officials were told by the birth mother that her spouse was a parent of the child, who was given a hyphenated surname reflecting both mothers, with the spouse named first. The birth certificate listed both women as parents of the child, but after the birth, the spouse “left the household, in her words, to ‘not cause undue stress or potential other problems'” By a week after the child’s birth, they had established separate households. The birth-mother filed the divorce proceeding in December 2013, less than three months after the child was born. Once she filed for divorce, she denied access to the child to her spouse, who then filed a motion for relief, including access to the child, maintenance, and attorney fees.

Justice Dollinger observed that there were two routes to analyzing the issue of the spouse’s parental rights, one statutory and the other common law. The statutory would lead through a complex maze of somewhat antiquated New York statutes that have not been adequately updated by the legislature to reflect the variety of family forms and developments in reproductive technology. Amazingly, New York’s statutes do not define “parent” and the courts have been left to fend for themselves without legislative guidance, leading to a variety of decisions, some widely deplored as unfortunate and out-of-touch with the reality of family life. If one were to follow this statutory line of analysis, Justice Dollinger found, the spouse would be out in the cold in terms of parental rights.

But the Marriage Equality Law suggests that this would not be an appropriate approach to take, because under the long-established “common law” (non-statutory law arising from court decisions) of New York, there is a strong presumption that when a married woman gives birth, her legal spouse is the parent of the child. This presumption was long grounded in an expectation that people obeyed the laws (some laws now defunct) under which the only lawful sexual acts were vaginal-penile intercourse between a married different-sex couple, therefore it was logical to assume that if a married woman became pregnant, the father was her husband. Such a presumption would make little sense in the case of a same-sex couple, of course, if it were based solely on biology. The purpose of this presumption was to advance the preference of the law that newborn children not be deemed “illegitimate” if at all possible.

Justice Dollinger decided that this common law presumption, viewed in connection with the Marriage Equality Law’s requirement of equality of treatment, and the uncontested fact that both women did sign the consent forms, even if they were not “acknowledged” and thus could not serve under statutory analysis of provisions on donor insemination to secure the spouse’s parental rights, decided that as a matter of common law there is a rebuttable presumption that the same-sex spouse of a woman who becomes pregnant through donor insemination is the parent of the resulting child. A rebuttable presumption could be rebutted by evidence that this was not what the parties had intended, but such evidence does not exist in this case. Indeed, it appears pretty solid from the consent forms and the facebook posting, as well as the other conduct of the parties during the period of insemination and pregnancy, that this is the result they intended.

Some other courts around the state have reached similar results without quite so much agonizing, and of course women who marry their same-sex partners and have children probably routinely expect this to be the case. A trial court ruling is not precedential, and it is unclear whether the birth mother intends to appeal. The lawyers in the case are Joanne Best from Brockport and Jeanne Colombo from Rochester.

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