In a case showing the pressing need for revision and updating of New York’s Domestic Relations Law to reflect modern-day family realities and effectively take account of the existence of the N.Y. Marriage Equality Act, the Appellate Division, 3rd Department, ruled on January 25 that a sperm donor to a lesbian married couple was “equitably estopped” from seeking a paternity determination regarding the child conceived using his sperm, and countermanded a ruling by Chemung County Family Court Judge Mary Tarantelli that genetic testing be done to confirm the plaintiff’s biological fatherhood. Christopher YY v. Jessica ZZ and Nichole ZZ, 2018 WL 541768. There was no dispute between the parties that the child in question was conceived using his sperm.
Jessica and Nichole, the respondents in this case, were married before Jessica gave birth to their child in August 2014. Justice Robert C. Mulvey described the circumstances of the child’s conception: “It is undisputed that the child was conceived, on the second attempt, through an informal artificial insemination process performed in respondents’ home using sperm donated by petitioner. The parties, who had known one another for a short time through family, had discussed respondents’ desire to have a child together, and petitioner volunteered to donate his sperm for this purpose. The parties agree that petitioner, with his partner present, knowingly provided his sperm to assist respondents in having a child, and that the wife performed the insemination. Prior to the insemination, the parties had entered into a written agreement drafted by petitioner that was signed by respondents and petitioner in the presence of his partner. Pursuant to that written agreement, which was entered into without formalities or the benefit of legal advice, petitioner volunteered to donate his sperm so that respondents could have a child together, expressly waived any claims to paternity with regard to any child conceived from his donated sperm and further waived any right to custody or visitation, and respondents, in turn, waived any claim for child support from petitioner.” The court noted that Christopher, the petitioner, denied the existence of such a written agreement, but the court found that the testimony by respondents and petitioner’s partner provided a basis for the Family Court’s determination that it did exist.
After the child was born, the parties “disagreed on petitioner’s access to the child, and his partner subsequently admitted in sworn testimony that she had destroyed the only copy of that agreement,” but the court decided that the agreement was only being considered for the purpose of determining the parties’ “understanding, intent and expectations at the time that petitioner donated his sperm and the wife impregnated the mother,” and not as a legally enforceable contract, so its destruction was not critical in this case. The court stated that the respondents lived together with the child as a family, and the petitioner did not see the child until she was one or two months old.
Family Court Judge Tarantelli rejected the mother’s motion to dismiss the proceeding, and, over opposition, granted the petitioner’s request for genetic testing, but agreed to stay the testing order while the mother appealed the ruling. The Appellate Division allowed a direct appeal of the Family Court’s order.
Justice Mulvey reviewed the basic family law principles under which the spouse of a woman who bears a child is presumed to be the child’s legal parent, the child being characterized as a “product of the marriage.” The statutes provide that this presumption can be rebutted through a proceeding establishing that another man than the mother’s husband is the biological father of the child, so that the child is not, literally speaking, a “product of the marriage.” But, he pointed out, the tests in our antiquated statutes don’t really account for the modern phenomenon of same-sex couples having children through donor insemination, as the donor insemination statute focuses on the legal parental status of a husband who gives written permission for his wife to receive a sperm donation from another man.
“Application of existing case law involving different-gender spouses,” Mulvey wrote, “addressing whether the presumption has been rebutted, to a child born to a same-gender married couple is inherently problematic, as it is not currently scientifically possible for same-gender couples to produce a child that is biologically ‘the product of the marriage.’ . . . If the presumption of legitimacy turns primarily upon biology, as some earlier cases indicate, rather than legal status, it may be automatically rebutted in cases involving same-gender married parents. This result would seem to conflict with this state’s ‘strong policy in favor of legitimacy,’ which has been described as ‘one of the strongest and most persuasive known to the law.’ Summarily extinguishing the presumption of legitimacy for children born to same-gender married parents would seem to violate the dictates of the Marriage Equality Act,” noting that law’s requirement that married same-sex couples have the same “legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage” as different-sex couples have. “As the common-law and statutory presumptions of legitimacy predate the Marriage Equality Act,” Mulvey commented, “they will need to be reconsidered.”
While pointing out that “a workable rubric has not yet been developed to afford children the same protection regardless of the gender composition of their parents’ marriage, and the Legislature has not addressed this dilemma, 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.” The court decided, biology aside, that the petition in this case has not “established, by clear and convincing evidence, that the child is not entitled to the legal status as ‘the product of the marriage,” and thus the presumption is not rebutted and, even if it was because there was no disagreement that petitioner was the only sperm donor, “we find, for reasons to be explained, that the doctrine of equitable estoppel applies to the circumstances here and that it is not in the child’s best interests to grant petitioner’s request for a paternity test.”
The court rejected any argument that because the respondents had proceeded informally and not complied with statutory provisions governing donor insemination in New York, they were precluded from achieving legal recognition for their family. Actually, in past cases the New York courts have not formalistically insisted that parental presumptions don’t apply if the parties failed to follow the donor insemination law to the letter. As to the application of equitable estoppel to block Christopher’s paternity action, the court cited earlier cases holding that the doctrine “is a defense in a paternity proceeding which, among other applications, precludes a man from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another [person].” This is done to “protect the status interests of a child in an already recognized and operative parent-child relationship.” In other words, the court is not going to let Christopher interfere in the established relationship that Nichole has with the child her wife bore.
Relating this back to the facts of the case, Mulvey found that the conduct of the parties support blocking Christopher from the paternity action. “He was not involved in the child’s prenatal care or present at her birth, “wrote Mulvey,” did not know her birth date, never attended doctor appointments and did not see her for at least one or two months after her birth. He was employed, but never paid child support, and provided no financial support… By his own admission, he donated sperm as a ‘humanitarian’ gesture, to give respondents ‘the gift of life’ and expected only ‘contact’ with the child as a ‘godparent’ by providing her mothers with ‘a break’ or ‘help.’ He never signed an acknowledgement of paternity or asked to do so, and no aspect of his testimony or conduct supports the conclusion that he donated sperm with the expectation that he would have a parental role of any kind in the child’s life, and he never had or attempted to assert such a role.” On the other hand, the testimony fully supported Nichole’s role as a mother to the child. The court also pointed out that Christopher didn’t file his petition until the child was seven months old, and was “in an already recognized and operative parent-child relationship” with her birth mother, Jessica, and with her other mother, Nichole.
The court concluded that authorizing genetic testing and allowing the case to proceed was not in the child’s best interest, in light of the existing relationship of the child and her parents.
The court related that a new attorney had been appointed to represent the child in this appeal. She had favored the genetic testing, mainly because of events that have occurred since the Family Court hearing. It seems that the child has been in foster care, and there are neglect petitions pending against the mothers, although the lawyers appearing at the hearing in the Appellate Division did not know the details. “However,” wrote Mulvey, “we find that the subsequent events, on which we take no position, do not alter our conclusion that respondents established at the [Family Court] hearing that petitioner should be equitably estopped from asserting paternity under the circumstances known to the Family Court at the time of the hearing,” and allowing new matters to be raised at this point “should not be permitted. Doing so would continue to invite challenges to the then-established family unit into which the child was born, creating instability and uncertainty.”
Jessica is represented by Ouida F. Binnie-Francis of Elmira, N.Y., and Nicholde is represented by Lisa A. Natoli of Norwich. The child is represented by Michelle E. Stone of Vestal. Christopher is represented by Pamela B. Bleiwas of Ithaca.