29 January 2018
ByAppeared in BioNews 935
A New York appeal court has ruled that a man who donated sperm to a lesbian couple has no legal right to demand a paternity test for the resulting child.
In 2013, the man voluntarily donated sperm to a lesbian couple to allow them to have a baby. Before the insemination took place, he signed a written agreement waiving any claim to legal paternity but had a change of heart seven months after the child was born. The mothers married prior to the birth, and both are named on the birth certificate.
His legal challenge asserting a right to conduct a paternity test was initially granted by a Family Court judge in Chemung County, New York. This would have allowed him to confirm his status as the biological father and potentially make further legal challenges. That decision was overturned by the state Supreme Court's Third Judicial Department after an appeal by the child's mothers.
Beth Littrell, a staff council from the American LGBT (lesbian, gay, bisexual and transgender) civil rights organisation Lambda Legal, praised the ruling. 'Thankfully the court did not elevate biology over this child's reality,' she said. 'This is a family, and the child has two parents, and that they're the same gender and not biologically related is unimportant.'
Married couples are usually exempt from intrusive paternity tests due to a legal concept known as the 'presumption of legitimacy', where it is simply assumed that the child belongs to the couple. In some cases, however, this can be challenged. With a heterosexual couple, this can involve trying to prove that the husband and wife could not have been in the same place when the child was conceived. With same-sex couples this becomes complicated, as it is immediately obvious they did not conceive naturally.
Justice Robert C. Mulvey, one of the five judges involved in the decision, wrote about the challenges of applying this concept to same-sex couples. 'Application of existing case law involving different-gender spouses … 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",' wrote Mulvey.
Despite these difficulties, the judges ultimately came down in favour of the mothers, ruling against granting a paternity test on the basis that it would be an undue and unnecessary burden on an existing same-sex family.
'We believe that it must be true that a child born to a same-gender married couple is presumed to be their child,' said the justices in their unanimous decision. 'If we were to conclude otherwise, children born to same-gender couples would be denied the benefit of this presumption without a compelling justification.'