Caroline Krauss-Browne and Margaret Canby
In Chapter One, we discussed the availability of single parent adoption, adoption by non-married couples, the presumption of legitimacy which is afforded to children conceived by assisted reproductive technology (ART) and borne to married heterosexual couples, and the inconsistent treatment of same-sex couples in similar circumstances. In this chapter, we address whether a child is entitled to the security of legitimacy if the formalities required by the law conferring legitimacy are not strictly followed, how the law is evolving for same-sex spouses who conceive via ART, and how do the principles of equity impact who can become a legal parent in the context of ART and otherwise.
New York’s Domestic Relations Law (DRL) Section 73 provides that a child borne by means of artificial insemination performed by people authorized to practice medicine and with the formal, written consent of the woman and her husband and their physician “shall be deemed the legitimate, birth child” of the couple for all purposes. In other words, in order to have both the biological parent and her spouse with no biological connection to the child presumed to be the legal parents of the child, there needs to be a doctor who performs the insemination and a notarized form signed by the doctor and both “parents” affirmatively stating that the non-biological spouse is for all purposes the other parent.
The problem with this well intentioned expansion of the legal ways to become a parent is — what happens if the formalities of clinical (and expensive) artificial insemination are not observed? What happens if the insemination was performed at home without a physician and/or without the formal, written, notarized consent of both spouses and their physician? Without potential redress based upon more searching inquiry into the facts and circumstances surrounding the conception of a child, a single administrative oversight, nothing more than a paperwork defect, could void in one parent all rights and obligations in one fell swoop, possibly not to be discovered for many years of a functioning parent/child relationship unless and until the parents break up.
The unfairness of such a situation is glaring. Thus, an appellate court covering the greater Albany area ruled that DRL Section 73 is not intended to be the only path to legitimacy and the actions and intentions of the spouses have bearing on the outcome of legal parentage. Therefore, a father couldn’t get out of support obligations because of a technical failure to perfectly comply with the formalities of the artificial insemination statute regarding the affidavit to be executed by the doctor and parents.
Add to that problem is how that issue is addressed in the same sex context. In 2011, the Marriage Equality Act (MEA) amended all statutes referring to husbands and wives to the extent required to make them gender neutral “spouses”. As previously discussed, that did not stop one appellate court from discriminating against same-sex couples, rationalizing that, since it is not biologically possible for both parties in those cases to be the “birth” parents, the MEA did not change how we read and interpret DRL Section 73. Are same-sex couples continually being denied the presumption of legitimacy despite the passage of the MEA?
As proof of the rapidly changing nature of how the New York courts are resolving these issues, since our last post, a second New York appellate court held that a child borne to a married woman is the legitimate child of both spouses irrespective of the gender of the spouses and the failure to comply with DRL Section 73 stating: “[t]he record reflects that the parties made an informed, mutual decision to conceive the subject children via artificial insemination and to raise them together, first while in a registered domestic partnership in California and, later, while legally married in the state.” Seemingly straight forward, this is a radical statement given the state of the law in NY.
In that particular case, the biological mother commenced a separate legal proceeding seeking a declaration that the couple’s friend and sperm donor is the other parent of the children at issue (and not the other same-sex spouse). She did this to position the children as already having two parents (a mother and a father) and to edge out her spouse as an unwanted interloper. In addition to black letter law, common law and principles of equity were applied to fashion a remedy which was consistent with the parties’ intention at the time the children were conceived and born and advanced the best interests of the children; namely that the sperm donor (biological parent) was not the children’s legal parent and the biological mother’s spouse with no biological connection to the children was their legal parent. In what seems the first such decision of its kind, the benefit to the child of continuing to be parented by its original two female parents won out over the implied policy, paramount for so long, that any chance for a child to gain a new father would prevail against and push out an existing second mother.
Are the principles of equity (fairness) applied in other situations where parentage is an issue? Many people might be surprised to learn that men who are not the biological parent of a child can be “estopped” or precluded from legally repudiating paternity after a de facto parent-child relationship has been established. Courts can and do direct non-biological non-adoptive adults who have assumed a parental role to pay child support, even if the parent-child relationship falters or when the biological father becomes known. This is because, as a matter of public policy, it is in a child’s best interest to have the support of two parents.
That same “father”, who has no biological or adoptive ties to the child but who has been judicially declared the father in a child support proceeding initiated by the mother, has the right to assert claims of custody of and access to the child. Interference with the parent-child bond is viewed as antithetical to the child’s best interests and, as a result, that non-biological, non-adoptive, judge-made father’s relationship with his child is deserving of legal protection.
Conversely, because a child born to a married woman (either the “old fashioned” way or by way of ART) is legally presumed to be the legitimate child of the husband and wife, when the husband has assumed the role of the child’s father, the husband has been held out to the community as the child’s father and the child believes that the husband is his or her father and has formed a parental attachment to him, another man who is or may be the actual biological father will usually not be permitted to compel a paternity test or otherwise assert paternity and intercede into the existing functioning parent-child relationship, thus, the “interloper father” is denied custodial and visitation rights. The same principal drives this policy, to wit: Interference with the child’s bond to the man he or she believes is his or her father and the peace and sanctity of the existing family is viewed as antithetical to the child’s best interests and deserving of legal protection.
Historically, the protection of children and their de facto parents for support purposes (even when no statute directed or even authorized the court to so act) has been founded upon the principles of equity. Equitable estoppel – the power to “estop” a mother or father from asserting a legal right that he or she otherwise technically has but should not be allowed to assert because of the harm it would work on others — prevents non-biological parents from disavowing paternity and the responsibilities and benefits that come with it. A bedrock of sound jurisprudence, estoppel is based upon principals of honesty and fair dealing and the prevention of fraud and injustice.
If the Court’s equitable powers are used to protect a child’s best interests in the situations described above, involving men who have de facto parent-child relationships with children to whom they have no biological or adoptive tie, then logic would dictate that these same equitable powers should be used to protect the children in all circumstances. Due to the biological impossibility of two women and two men having a child together and the high cost of adoption, there is a whole class of children who have de facto parent-child relationships which have been established with the consent and encouragement of the biological mother or adoptive father and which are deserving of legal protection. The answer to that question has historically been negative. How is the law evolving? We are on the cusp of what we hope and expect to be major changes in the law, which will be discussed in detail in our next chapter.