Wendy G-M v. Erin G-M

Supreme Court of New York · Family Law

Family LawParentageArtificial InseminationSame-Sex Marriagemarital presumptionlegitimacyparentagesame-sex marriage

Facts

The parties were married in Connecticut and jointly pursued artificial insemination so they could have a child. They both signed a clinic consent form stating that any child resulting from the insemination would be accepted as the legal issue of their marriage, but the signatures were not acknowledged as required by Domestic Relations Law § 73. The spouse participated in the fertility process, pre-birth preparations, and birth, and the child's birth certificate listed both women as parents. Shortly after the child's birth, the parties separated, the birth mother filed for divorce, and she refused to allow the spouse to see the child.

Issue

Whether a non-biological spouse in a same-sex marriage is a parent of a child born during the marriage through artificial insemination when the written consent form does not comply with Domestic Relations Law § 73's acknowledgment requirement. More specifically, the court had to decide whether New York's common-law marital presumption of legitimacy and presumed spousal consent applies in this context.

Rule

Domestic Relations Law § 73 creates an irrebuttable presumption of parentage only upon strict compliance with its written and acknowledged consent requirements. But even without strict compliance, a child born during a valid marriage through artificial insemination is subject to the common-law marital presumption that the spouses are the child's parents, including a rebuttable presumption of the spouse's consent to the insemination; under the Marriage Equality Act, that marital presumption applies equally to same-sex spouses.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Albany, Maya Ortiz and Lena Brooks are validly married. They use donor insemination at a fertility clinic, and both sign a written consent form, but neither signature is acknowledged before a notary; the physician signs a certification after performing the procedure. After the child is born during the marriage, Maya argues Lena can claim no parentage because the statute was not satisfied.

Under the majority's rule, which is the strongest answer?

Explanation. The majority held that § 73 requires strict compliance, including acknowledged signatures, before its irrebuttable presumption applies. But failure to satisfy § 73 does not defeat parentage arising from the common-law marital presumption when a child is born during a valid marriage through donor insemination, and the Marriage Equality Act requires that marriage-based common-law rules be applied gender-neutrally.