Since marriage equality was enacted the question of the rights of the non-biological gay and lesbian parents’ rights to the child of the married remained unresolved.
Under New York Law, a child born during a marriage is presumed to be the legitimate child of the married couple. Later, when artificial insemination and other alternative reproductive technologies began being used to help straight infertile couples an additional legal protection was added.
The statute says that when “Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, birth child of the husband and his wife for all purposes.”
This statue does not cover gay/lesbian couples. However, three appellate courts in New York have held that a child born into a gay/lesbian marriage is presumed to be the child of the married couple.
In the most recent case a lesbian couple used a donor to impregnate one of them. A child was born and both mothers had their names placed upon the birth certificate. Later the biological father filed a petition seeking parental rights to the child. The appellate court determined that it would not be fair or equitable to the child if the biological father was granted any rights.
To a non-lawyer that might sound strange, as it would seem that we are dealing with the rights of adults to a child. But, when we are discussing parental rights and duties the court also considers the child’s interests.
The court was seeking to secure a sense of stability and tranquility to a domestic arrangement between the gay/lesbian couple and the child. In this particular case, it had always been the case that the biological father would merely be a sperm donor and nothing else. The court reasoned that it would be confusing to the child to have the biological father intruding upon the established relationships.
Another appellate court extended the same concept in a gay relationship. A gay couple using a surrogacy contract had a child while married. They later separated and the biological dad tried to have his new partner adopt the child. He did not provide notice of the proposed adoption to his husband and in fact lied about the relationship to the court. The court stopped the adoption and held that the non-biological father was a parent under the law and was entitled to notice of the proposed adoption and the right to object to it.
These cases further equalize and strengthen gay/lesbian marriages in New York. The courts are taking a clear position that marriage equality in New York means just that: gay and lesbian couples will have the same rights as straight couples.
