A couple of posts back I wrote about marriage and parenthood and how they are linked together in Oregon. Bottom line (for present purposes) is this: When a married couple in OR uses ART, the spouse of the woman who gives birth is a legal parent, whether that spouse is male or female. The statute itself only speaks of “husband” a few years back the OR Supreme Court reasoned that you couldn’t treat couples using ART differently because of their sex. There’s no good reason for doing so.
Now comes a new case from NY reaching a different result. A married lesbian claiming parental status by virtue of her marriage to the woman who gave birth is told “no,” although I believe a man in her position would have been told yes. The case is Paczkowski vs. Paczkowski and it is from the Appellate Division, Second Department. I haven’t got a good way to link to the opinion, which in any event is quite short. The key phrase, for my purposes, is this:
Contrary to the petitioner’s contention, Family Court Act § 417 and Domestic Relations Law § 24 do not provide her with standing as a parent, since the presumption of legitimacy they create is one of a biological relationship, not of legal status
The statutory provisions referenced embody NY’s marital presumption.
There is at least one important difference between the statutory law in OR and that in NY. The OR law specifically applies to use of assisted insemination with third-party sperm. In that context, it is clear that the OR presumption is not a presumption about genetic connection. And since it is not related to genetics it is indeed difficult to see why it would be extended to male spouses but not female spouses.
The New York presumption, however, is general. It is not specifically for assisted insemination. (You can read the statutory language here and here.) There are still arguments that the presumption should apply, but they are somewhat more complicated. And yet there is still an equality issue. I’m no expert on NY law, but my recollection is that if a husband/wife use third party sperm the husband will be a legal parent while this case clearly suggests that if a wife/wife use third party sperm the non-child-bearing wife will not be a legal parent.
I won’t, at the moment, go into the NY result in any detail. I only want to offer this observation: If you are a married lesbian couple in OR and you use ART you are both going to be legal parents automatically. But if the same people do the same thing in NY, only one of them will be a legal parent. In NY, the female spouse would have to go the extra step of adopting the child in order to claim legal status. Remember that status as a legal parent can be incredibly important. This kind of variation from state to state can only create peril for those without the wherewithal to be in close touch with competent counsel. that, it seems to me, is a problem.
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N.Y. law clearly provides that children born to a married woman through artificial insemination are the legal children of the woman and her husband, as long as the procedure is performed by a doctor and the husband consents. See Section 73 of the Domestic Relations Law (here: http://codes.lp.findlaw.com/nycode/DOM/5/73). And the Marriage Equality Act clearly provides that gender-specific terms like “husband” should be read to include same-sex spouses.
My first thought was that this was probably one of those cases where the insemination wasn’t doctor-supervised. According to this New York Times article, that turns out to be true: http://www.nytimes.com/2014/09/14/nyregion/after-a-same-sex-couples-breakup-a-custody-battle.html?_r=0 But there’s an even more significant factual point: the women were not married when their child was born. Unless I’m missing something important, the Appellate Division here answered a question the case doesn’t even present.
Your first point is, I think, the argument the court rejected. And it did so because it viewed the presumption as being about biology rather than about legal status. And you are right about the second point, in general. But notice that Oregon worked around this difficulty. A NY court could have taken a similar route, employing equitable reasoning, basically. But NY courts may not be inclined to do this. NY is also a jurisdiction with no de facto parent doctrine.