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.