The non-biological spouse in a same-sex marriage is a parent of the child under New York law as much as the birth-mother. So held Monroe County Supreme Court Acting Justice Richard A. Dollinger, in his May 7, 2014 opinion in Wendy G-M v. Erin G-M.

The birth mother and her spouse were married in a civil ceremony in Connecticut, before New York enacted its Marriage Equality Act (“MEA”). 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, declaring “any child or children born as a result of “ pregnancy following artificial insemination shall be accepted as the legal issue of our marriage.”

The document was signed by the birth-mother, the spouse, and the physician, but there was no acknowledgment to the signatures before a notary (as required by D.R.L. §73). Both parties underwent artificial insemination for almost two years, until the procedure succeeded on the birth-mother; the spouse then discontinued her treatments. Both 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 of “our” daughter through a Facebook posting.

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.

Justice Dollinger was called upon to 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.

In his characteristically scholarly analysis, Justice Dollinger traced both the common law and statute.

At the intersection of these two paths, one bright light illuminates both: New York’s public policy strongly favors the legitimacy of children, and that “the presumption that a child born to a marriage is the legitimate child of both parents is one of the strongest and persuasive known to law.”

At common law, parentage derived from two events, a child’s birth to its “mother,” and the mother’s marriage to a man. Children born out-of-wedlock had only one legal parent, their birth mother. Recognizing the many advantages that flowed to children from having two parents, legislatures enacted filiation or paternity proceedings to confer legal parentage on non-marital biological/genetic fathers, a status which carries support and other obligations.

Under statute, D.R.L. §24 provides that a child born to married parents “is the legitimate child of both parents.” F.C.A. §417 provides:

A child born of a parent who at any time prior or subsequent to the birth of said child shall have entered into a ceremonial marriage shall be deemed the legitimate child of both parents for all purposes of this article regardless of the validity of such marriage.

As Justice Dollinger noted, both of these statutes pre-dated the increasing availability of artificial insemination and the existence of legally-recognized same sex unions and marriages. Both statutes were designed as tools to link reluctant married fathers to their offspring, regardless of whether the subject marriage was technically invalid under the strictures of New York law. The statutes only have applicability in opposite sex marriages as evidenced by the fact that the usual technique to confirm parentage is a genetic test of the putative father which establishes an irrefutable genetic link between the child and the father. The presumption of paternity under both statutes may be rebutted by clear and convincing evidence excluding the husband as the father or otherwise tending to disprove legitimacy.

While never defining the word “parent” in any pertinent statute, the Legislature, more than 40 years ago, did anticipate the impact of artificial insemination on the determination of parenthood. D.R.L. §73 addresses the status of a parent when, as a result of artificial insemination by an anonymous donor, there would be no genetic link between the child and one of the two parents. The statute provides:

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.

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.

When all the statutory conditions are met, the statute operates to create an “irrebuttable presumption of paternity.”

Prior to 2010, even if a party did not strictly comply with the requirements of DRL § 73, New York courts held that the non-biological spouse may still be declared a parent of the AID child under the common law marital presumption of legitimacy. Nothing indicated any requirement that the procedures in DRL § 73 be the only way to establish the legitimacy of a child born by AID.

Importantly, in all prior cases, the written consent requirement was used as the legal equivalent of a shield: in the absence of a properly executed consent, the husband argued that he could not be held accountable for support of his wife’s child, created without his signed consent through AID. In short, the non-birth parent argued for a strict reading of the statutory requirement as a form of financial protection, shielding him from his obligation to support a child conceived by his wife without his knowledge and written approval.

Here, Justice Dollinger noted the roles were  different: the birth-mother sought to use a strict reading of New York’s consent requirements as a sword to cut off her spouse’s rights as a parent to access to the child.

New York’s Marriage Equality Act also impacted the Court’s view. That Act extended to same-sex couples the recognition of their marriages. DRL §10-a now provides:

No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy, common law or any other source of law, shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific language or terms shall be construed in a gender-neutral manner in all such sources of law.

Importantly, the statute specifically directs that no “common law” provisions relating to marriage “shall differ” because the married couple have the same sex.

The implication of the MEA is unmistakable: wherever the words “husband” or “wife” exist in statute or common law, the MEA requires the courts to read the terms as gender non-specific and extend the same rights to same-sex couples as exist for opposite-sex couples. The MEA eradicates any distinction between the sexes . . .

The Court of Appeals decision in Debra H. v. Janice R., 14 N.Y.3d 576,  904 N.Y.S.2d 263  (2010), opened the door for New York to recognize a partner, in a civil union, as a parent of a child born by AID during the civil union. The only remaining question for this court was  whether to recognize a spouse, in a marriage, as a presumed parent of a child born by AID during the marriage. Justice Dollinger held the underlying valid marriage provided an undisputed basis for the assertion of parental rights.

The presumption of parental status for children born into a marriage should not be discarded because the married couple, who planned for the child and celebrated its arrival, failed to have their consent notarized.

Rather, a consent, properly executed and acknowledged under DRL §73, is irrefutable. The presumption that arises in this case — the presumption of a spouse’s consent to artificial insemination – is not irrefutable. The marital consent presumed in this case may be rebutted by either spouse in the same-sex marriage. The birth-mother could produce evidence that she never intended her spouse to be the parent of the AID child. The unknowing spouse would be faced with a presumption of consent to parenthood by virtue of the marriage and would have ample opportunity to rebut the presumption with evidence that the birth mother failed to obtain any consent prior to the conception. The unknowing, non-biological spouse, would be required to overcome the presumption of consent, and prove lack of consent.

The Marriage Equality Act swept away many of the sex-based distinctions in New York’s Domestic Relations Law in the spirit of individuals making their own choices in both entering and living a married life, free from unreasonable restraints. To impose the presumption of consent to AID for couples in a heterosexual marriage, but not for those in a same-sex one, when both are similarly situated, but for sexual orientation, would reverse the gender-neutral approach to New York’s families canonized in the MEA.

This court will not stop that march to greater equality for all lawfully married couples. 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.

Joanne Best, Esq., of Brockport, represented the birth-mother. Jeanne M. Colombo, Esq., of Rochester, represented the spouse.

For a related blog post, see Same-Sex Spouse of Biological Mother May Seek Custody and Visitation