(CN) – Blocking a sperm donor’s demand for a paternity test in a landmark ruling Thursday, a New York appeals court bestowed “the presumption of legitimacy” on a child born to a married lesbian couple.
“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,” Justice Robert Mulvey wrote for a five-member panel in Albany. “This would be indefensible, and not warranted by the facts adduced at the hearing. Further, it would undermine the ‘compelling public policy of protecting children conceived via AID [artificial insemination by donor].’”
With the surnames of the parties redacted, the ruling notes that Christopher YY voluntarily, albeit informally, donated his sperm to Jessica ZZ and Nichole ZZ so that the women could have a baby.
Nichole inseminated Jessica herself in Nichole’s house; the couple married before the birth of the child in August 2014; and Nichole was recorded as a mother on the child’s birth certificate.
The ruling notes that Christopher waived any claims to paternity in a written agreement prior to the insemination, but he had a change of heart after the baby was born, petitioning for paternity once the child was 7 months old.
When that petition was granted by a Family Court judge in Chemung County, just west of Binghamton and north of Pennsylvania, Jessica and Nichole appealed to the state Supreme Court’s Third Judicial Department.
Married couples generally enjoy protection from intrusive paternity tests through what is known as the presumption of legitimacy, but Judge Mulvey noted that this presumption can be rebutted.
With a straight couple, a party can show for example that the husband did not have access to his wife at the time of conception. When it comes to same-sex couples, Mulvey said the rebuttal 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.’”
Lambda Legal staff counsel Beth Littrell also spoke about the shortfalls in the presumption rebuttal.
“Not all these laws are written to protect children … a lot of them are written to protect men,” Littrell said in an interview Thursday.
The Third Judicial Department said the sperm donor here failed to establish that the child is not entitled to the legal status as “the product of the marriage.”
“While 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 19-page ruling states.
“If we were to conclude otherwise, children born to same-gender couples would be denied the benefit of this presumption without a compelling justification.”
Lambda Legal attorney Littrell praised the finding.
“Thankfully the court did not elevate biology over this child’s reality,” Littrell said. “This is a family, and the child has two parents, and that they’re the same gender and not biologically related is unimportant.”
Mulvey chided the Family Court meanwhile for ignoring evidence about how a paternity test would disrupt the family unit, and “nullify the child’s established relationship with the wife, her other mother.”
“The fact that they are both mothers does not warrant a finding that the child has an interest in knowing the identity of, or having a legal or familial relationship with, the man who donated sperm that enabled the mother’s conception,” Mulvey wrote.
Littrell at Lambda Legal said the ruling is an important step for equal rights.
“Hopefully other appellate courts will look to this decision and apply it with the same kind of sensible notions that were applied here,” she said. “I’m hopeful, but I’m also concerned that judges in some more conservative areas can come to conclusions that hurt same-sex couples … based on outdated laws.”
The ruling concludes with a note that Jessica and Nichole both face neglect petitions and that their child has been in foster care. While calling such developments “concerning,” Mulvey said they are ultimately irrelevant to the appeal.
All four members of the panel concurred in Thursday’s ruling, including the court’s newest inductee, Justice Elizabeth Garry, who is the court’s first openly gay jurist.
Michelle E. Stone, attorney for the child, declined to comment.
Jessica’s attorney, Ouida F. Binnie-Francis, could not be reached for comment despite multiple phone calls Thursday afternoon.