While same-sex couples have been able to legally marry across the nation for almost three years—and in some states, as many as 14 years, significant questions still arise about the treatment of children born into such marriages. Many states have struggled to keep pace with the significant social and legal changes affecting the family. Marriage equality alone is enough of a development to create challenges for legislatures and courts when they craft or apply laws that determine the existence (or non-existence) of legal parent–child relationships.
Now imagine you are in New York. But instead of imagining bustling Times Square in the city that never sleeps, imagine a state that is one of the few not to adopt a comprehensive parentage laws, even though many states did so as early as 1973. Imagine a state that considered the issue of surrogacy once and only once, in 1991, when it decided that it merited criminalization. Imagine a state that has no rule severing the paternal ties for sperm donors in most cases, leaving innumerable families in limbo if they have relied on sperm donation to conceive—or donated sperm to others. Now imagine that same state, with an already outdated set of parentage laws, grapple with the challenge of incorporating same-sex married families into its system. Now that’s what we’re dealing with in Christopher Y.Y. v. Jessica Z.Z., a case that raises questions about the legal parentage of a child born to a married lesbian woman with sperm donated by a partnered-but-unmarried male friend.
Donation, Conception, Birth
Jessica married Nichole. Jessica then used artificial insemination, performed at home without the assistance of a medical professional, to conceive a child. The sperm was donated by a friend, Christopher, who volunteered to help the two women have a child together. The parties—Jessica and Nichole, and Christopher and his partner—entered into a written agreement setting forth the terms of the sperm donation. The agreement was written, but not formalized in the ways required for important documents like wills or property deeds. The agreement included a waiver by Christopher of paternity or any resulting parental rights and a waiver by the two women to any claim for child support.
After Jessica gave birth to the child conceived with Christopher’s sperm, she and Nichole took full responsibility for care and childrearing. The child bore Nichole’s surname and joined a household that included Jessica’s two other children. Christopher did not see the child until after the first month or two of life and then only infrequently. At some point very early in the child’s life, the grown-ups began to disagree on Christopher’s access to the child. Within eight months, Christopher had filed a petition seeking the establishment of his paternity and, later, a petition for custody. Jessica opposed the request for a DNA paternity test, and, her wife was added as a party to the proceeding.
The family court in which the paternity petition was filed granted Christopher’s request for genetic testing, but stayed its order pending appeal.
Are You My Father? The Evolving Rules of Parentage
There is no dispute among the parties that Christopher provided the sperm that led to the conception of Jessica’s child. He is the child’s biological father. But that doesn’t mean anything legally unless his biological tie aligns with the law’s treatment of the relationship.
Parentage was once a relatively simple determination based on the mother’s marital status at the time of a child’s birth. A married woman who gave birth was deemed the legal mother, and her husband was presumed to be the child’s father. This was in part a guess about the biological tie—usually, but not always, right—and in part a step to protect an intact marital family from a scandalous disruption and possible dissolution.
In its traditional form, this so-called marital presumption was conclusive, meaning it could not be rebutted by facts in any particular case, unless there was proof that the husband was “out of the kingdom” near the time of conception and thus could not possibly have fathered the child. As the marital presumption evolved, it became a rebuttable presumption, which means that either a mother or her husband can seek to dispute presumed paternity with proof showing the lack of a genetic tie. However, even if this more lenient form, the marital presumption often holds as states impose strict procedural requirements on either party’s ability to disprove paternity. This strictness arises primarily from a policy desire to protect a child’s source of support from a second parent.
Most states make it difficult if not impossible for a biological father to prove his connection to a child born into a marriage (other than his own). In Michael H. v. Gerald D., the US Supreme Court upheld California’s marital presumption as applied to a proven biological father who was denied the right to a legal relationship with the daughter that meant a proven biological father who had developed an emotional relationship with his daughter could be constitutionally barred from ever seeing her again. In other words, the state is entitled to choose to protect a marital family at the expense of an interloping man, even though he would otherwise be deemed to have constitutional parental rights.
Many states, including New York, have passed statutes allowing a woman’s husband to be treated as the legal father of her child even though the sperm admittedly came from elsewhere. If artificial insemination is undertaken with the husband’s consent, and the insemination is conducted by a licensed physician, he is the legal father of the donor-conceived child, and the donor’s tie to the child is severed. Thus, if Jessica had been married to a man, and the insemination had been performed in a doctor’s office instead of at home, there would be no question that her spouse would qualify as the second legal parent to her child. The donor, alas, would be out of luck if he sought to establish paternity or gain custody or visitation (as those things are enabled by a threshold finding of legal parentage).
This case, however, raises the issue whether and how the marital presumption applies to a same-sex married couple.
Applying the Marital Presumption to Same-Sex Spouses
The scope and application of the marital presumption has been litigated steadily since the Supreme Court’s 2015 ruling in Obergefell v. Hodges, in which it held that states could not deny same-sex couples the right to marry without running afoul of the Due Process and Equal Protection Clauses of the US Constitution. Given the claims before the Court and the reasoning and language of the opinion, there can be no doubt (Texas be damned) that this entitles same-sex couples not only to marry, but also to access the same benefits available to other married couples. Throughout the opinion, the majority repeatedly admonished that same-sex couples have a right to “civil marriage on the same terms and conditions as opposite-sex couples.” As Justice Kennedy explained, “the petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex” (emphasis added). The Constitution, he continued, “does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” The Court thus concluded that the “State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” To hold otherwise “would disparage their choices and diminish their personhood.”
The Court has twice summarily reversed state courts that have ruled inconsistently with this principle. In V.L. v. E.L., the Court held that Alabama could not refuse full faith and credit to a lesbian co-parent adoption from Georgia, under the exacting form of full faith and credit granted to judicial decrees. In Pavan v. Smith (discussed in more detail here), the Supreme Court refused to allow Arkansas to deny same-sex married couples the right to include both spouses’ names on the birth certificate of a child born during the marriage. The US Supreme Court has not been asked to address the question whether the marital presumption is a benefit of marriage that must be applied equally to same-sex couples, but at least some state supreme courts have held that it is. These rulings rest on the determination that the marital presumption is a benefit of marriage, even if it also operates as a proxy for biological parentage.
Christopher Y.Y. v. Jessica Z.Z.: The Marital Presumption in New York
The constitutional questions arise in this context only if a state refuses to apply its marital presumption to a mother’s same-sex spouse. In this case, the question is whether it should apply in the first instance.
The questions on appeal in this case are whether New York’s marital presumption applies to a same-sex spouse and, if so, whether the presumption can be rebutted with proof that Jessica’s spouse, also a woman, lacks a genetic connection to Jessica’s child. The court ruled in favor of the women, denying Christopher’s request for genetic testing to prove his biological paternity and thus his ability to sue for custody or visitation.
Same-sex couples cannot (yet) produce a child that is genetically related to both of them—and only them. But should both of them nonetheless be treated as the legal parents of children born during the marriage? The New York court said yes.
Under New York law, when a paternity petition is filed, either the mother or the alleged father can request that the alleged father submit to DNA testing to determine the absence or presence of a genetic tie to the child. This provision, however, comes with an exception if the court finds that it would not be in the best interests of the child to order the testing “on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman.” With these exceptions, the law does not make biology dispositive of parentage. It clearly contemplates that a court may refuse to examine biological evidence if the child’s best interests lie elsewhere.
Jessica and Nichole argued that the court should refuse to order DNA testing because they were entitled to the presumption of legitimacy (New York’s term for the marital presumption discussed above), and the appellate court agreed. New York’s presumption of legitimacy, developed by early courts, has been codified and made part of the state’s Domestic Relations Code. The statute itself refers only to “parents” rather than “mother” and “father,” and seems to apply to married couples regardless of gender. This, moreover, is an interpretation of the statute that would avoid the inevitable constitutional challenge that has played out in so many other states. This interpretation is also consistent with New York’s only sperm donor statute, which allows the husband of a woman to be the legal father even if the sperm was provided by another man for use in artificial insemination. (Sperm donors who provide gametes to unmarried women do so their own risk, as do the women who make use of it. New York has no rule of non-paternity for sperm donors in this situation.) Thus, the presumption of legitimacy can be applied to a woman’s wife.
The presumption of legitimacy, however, is rebuttable in New York (as in most other states). Should Christopher be permitted to rebut the presumption with genetic evidence? This is a harder question because courts have permitted heterosexual couples to rebut the presumption with evidence that a man lacked “access” to his wife during the period of conception or evidence that the conception occurred because of a wife’s relationship with a man other than her husband. Given that it is never possible for a two-woman couple to conceive a child, this type of rebuttal evidence is always available. But the New York court did not give up. It acknowledged the “changing legal and social landscape” and decided that a “reexamination of the traditional analysis governing the presumption of legitimacy” was warranted. Toward that end, it rejected the notion that the presumption of legitimacy should be deemed automatically rebutted in cases involving a same-sex couple just because they did not both contribute gametes to the child’s conception. That approach, the court reasoned, flies in the face of the law that granted marriage equality in New York in the first place (several years before the Obergefell ruling) and which required that all married couples have access to the same rights, benefits, and privileges.
The court noted 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.” Indeed, this is true, and the New York legislature has been chronically irresponsible in this regard. Comprehensive parentage bills have been introduced over and over, but they never seem to gain much traction. How to apply the marital presumption to a same-sex couple is just one of the questions that the legislature should address—in a clear set of rules that work best to protect children and their parents.
But without legislative help, this court decided that it had to forge ahead with a rule that would give children born to same-sex married couples the same protection—no more, no less—as children born to heterosexual married parents. In this case, the court found no clear and convincing evidence to rebut the presumption of legitimacy, although the court did not specify what it was looking for in the record. Perhaps this is because the court also ruled that the doctrine of equitable estoppel operated to prevent Christopher from using DNA testing to rebut the presumption.
Christopher argued that Nichole should not be recognized as a mother to Jessica’s child because the state’s artificial insemination statute applies only when a licensed physician performs the procedure. While the court concedes that the statute does not apply to Jessica’s case, it concludes that the insemination statute does not provide the “exclusive means” for a non-biological parent to establish parentage of a child born through artificial insemination. Though not obviously wrong, this conclusion is inconsistent with the rulings in many other states, in which courts have held that a donor has the right to seek parental rights if the requirements of the donor statute have not been met.
Nichole’s status—and thus Christopher’s status—turned, then, on whether equitable estoppel presented a sufficient reason to bar Christopher’s attempt to prove his genetic tie to Jessica’s child. As a general matter, this doctrine allows a court to preclude a litigant from asserting a position that is contrary to one previously asserted if another person has been led to believe the original position would stick. It is designed to prevent injustice caused by reliance on a position that is later changed or withdrawn. In the paternity context, New York courts have refused to allow men to assert paternity when they have acquiesced in the development of a parent–child relationship with another adult. The doctrine thus protects the status-based interests of a child in an existing parent–child relationship.
The court in this case found that Jessica and Nichole offered sufficient proof that the elements of equitable estoppel were satisfied, and Christopher failed to prove that it would nonetheless be in the child’s best interests to order DNA testing. The court heard credible testimony that Christopher had voluntarily donated sperm to Jessica and Nichole and engaged in several discussions with them about their exclusive parental rights. All the parties seemed to agree that any child conceived with Christopher’s sperm would be raised by Jessica and Nichole, and that Christopher would have neither rights nor responsibilities. Christopher behaved consistently with this agreement, having no involvement in the pregnancy or birth, and no immediate visitation after the child was born. He never paid child support and described the sperm donation as a “humanitarian gesture” by which he could give Jessica and Nichole “the gift of life.” He never signed an acknowledgment of paternity. He acted as if he had no parental role towards the child, and Jessica and Nichole assumed full responsibility. Everything that one might have expected Christopher to do was done by Nichole instead.
“[T]he only conclusion that may be reached,” the court explained, “is that petitioner—aware during the mother’s entire pregnancy and for over seven months thereafter that he was the probable biological father—‘acquiesced in the establishment of a strong parent–child bond between the child and [the wife]’ for a protracted period of time.” He cannot now change his mind and attempt to insert himself into the lives of a married couple and their child. This may not be the last legal battle for this family, as the court learned during oral argument that the child has been in foster care for an extended period of time and that both Jessica and Nichole have neglect petitions pending against them. While this is troubling, the court was right to separate the threshold questions of parentage—determinations that are best served by rules that create stability and certainty—from the consequences of any later parenting conduct.
The modern family is nothing if not complicated—it inspires sitcoms for a reason. But people cannot wait years or decades for the New York legislature to craft reasonable rules that guide parentage determinations. They will forge ahead, as well they should, in creating the families they desire. But the lack of legislative action leaves too many of these families in limbo—and too many courts left holding the bag. It’s time for New York to pass a comprehensive parentage law.