A New York state man who supplied his sperm for a lesbian couple’s at-home insemination was denied a paternity test by a state appeals court last week, possibly ending his battle for parental rights over the now 3-year-old girl who was born as a result of his donation.
In a unanimous ruling that put family before biology, a five-judge panel overturned a county family court’s 2015 order that the child undergo a paternity test, finding that not only would the test be against the child’s best interests, but asserting that the “presumption of legitimacy”—a legal term for the general assumption that a child born to a husband and wife is the biological child of both parents—extends to same-sex couples as well (PDF).
“We believe that it must be true that a child born to a same-gender married couple is presumed to be their child and, further, that the presumption of parentage is not defeated solely with proof of the biological fact that, at present, a child cannot be the product of same-gender parents,” Justice Robert Mulvey wrote in a 19-page decision.
The identities of the parents are unknown—family court records are not public—but according to the appeals court decision, “Christopher” voluntarily offered his sperm to family friends “Jessica” and “Nichole” as a “humanitarian” gesture, and expected to be a godparent-type figure. All parties agreed “without formalities or the benefit of legal advice,” according to the court, that Christopher would waive his claims to paternity and signed an agreement saying as much.
After two do-it-yourself attempts at in-home artificial insemination, Jessica became pregnant. Shortly after, the women were married. Christopher was not involved in Jessica’s prenatal care, did not attend the baby’s birth, and paid no child support to either mothers aside from a single Christmas card and a few baby clothes.
Yet seven months after the girl’s birth, Christopher seemed to have changed his mind and wanted access to the child. So in April 2015 he filed a petition in family court, which Jessica and Nichole opposed. A family court ruled in Christopher’s favor and the mothers appealed.
In finding for Jessica and Nichole, Mulvey wrote that a paternity test for “an outsider, who merely donated sperm, belatedly asserting parental rights,” would “effectively disrupt, if not destroy, this family unit and nullify the child’s established relationship with the wife, her other mother. Testing in these circumstances exposes children born into same-gender marriages to instability for no justifiable reason other than to provide a father-figure for children who already have two parents.”
While noting that the question of legitimacy—usually invoked in questions of inheritance and child support—is “archaic,” the court ruled that its application was compelled by the Marriage Equality Act which extended marriage to same-sex couples and requires equal treatment of all couples under the law.
In October, a different New York state appeals court ruled similarly on the legitimacy question in a decision that vacated an adoption of a child by a gay man’s new partner because they failed to notify the man’s still-husband.
To complicate matters further, the appeals decision notes that Jessica and Nichole’s child is currently in foster care and has been “for a lengthy period of time” since the 2015 hearing. Few details are provided other than the existence of neglect petitions pending against both mothers.
Acknowledging that the child’s foster status was “relevant” and “concerning,” Mulvey wrote that it did not alter the conclusion that Christopher’s paternity test should be denied.
That ruling has practical implications for a growing number of children and their same-sex parents, according to Catherine Sakimura, the family law director for the National Center for Lesbian Rights.
“A significant portion of cases that we work on include a parent who might not be a biological parent but planned for conception and birth as any parent would, and whose rights are in question,” Sakimura said.
Sakimura also noted that families conceiving through at-home insemination—as Nichole and Jessica did—is on the rise, especially in low-income families, because of the prohibitive cost of fertility doctors. Most state laws dealing with custody issues rely on language specific to medical procedures in doctors offices, and haven’t caught up with the reality of this kind of do-it-yourself family planning for same-sex couples.
“The unfortunate reality for same-sex couples... is depending on the state you live in, you don’t really know if the law is going to ultimately protect you,” she said.
Indeed, this decision—which some are calling “landmark”—seems another forward step in a national trend. Still, New York is just one of 50 states—each with their own laws governing legal parentage.
“That’s part of the challenge,” Sakimura says.
Christopher is merely the most recent sperm donor to petition the courts for access to the children born from his genetic contribution.
In 1997, Chicago man Kevin Green sought parental rights for a child born to lesbian friends. They settled out of court when the mothers agreed to grant him visitation rights. Reached through text message on an island in Panama, his lawyer, Alan Toback, told The Daily Beast that Green “would have won,” had he not dropped the lawsuit, because “the mothers did not follow a statutory scheme to relinquish his rights.”
Recent cases bolster his confidence. Twenty years after Green’s case, a Texas District Court of Appeals granted a man’s request to seek parental rights over a child born from his sperm donation to a lesbian friend. The court ruled against the mother—who disputed his rights to the child after marrying a woman—in large part because she performed the insemination herself instead of going to a doctor, and so the man wasn’t a “donor” in the eyes of the law.
Still, experts say courts are trending toward the expansion of protections for gay and lesbian couples.
“Family courts across the country are catching up with the constitutional dictates of equality,” said Karen Loewy, counsel for the nation’s largest LGBT civil rights organization, Lambda Legal.
“[Nichole and Jessica’s] case is remarkable, but it shouldn’t be remarkable,” Loewy said. “The court invoked established equitable principles rooted in the child’s best interest.
“There’s a layman’s tendency to say, ‘Well it’s all about biology.’ What the court realized is that it would eviscerate protection for same-sex couples. Instead, the court really focused on the integrity of the family formed by these two moms.”
It’s too early to know whether Christopher will appeal this ruling.
Christopher’s attorney, Pamela Bleiwas, declined to comment because of privacy restrictions of family court. Lawyers for the mothers and an attorney representing the child could not be reached for comment.