A recent decision by an appeal court in New York state has denied a sperm donor’s request to have a paternity test in order to be recognized as a child’s legal parent, noting that “biology is not dispositive in a court’s paternity determination.”

What Happened?

A man in question donated sperm to two lesbian women to help the women have a child together. A child was eventually successfully conceived through “an informal artificial insemination process” in the women’s home using the donated sperm and supervised by the man’s female partner.

The parties had only known one another for a short period of time prior to the child’s conception. Before the successful insemination, the parties had entered into a written agreement drafted by the man without the benefit of legal advice. Under the terms of the agreement, the man expressly waived any claim he may have had to paternity and waived any right to custody or visitation. In return, the women waived any potential claim for child support.

The child was born in August 2014. The man did not see the child until she was about one or two months old.

Paternity Testing

In April 2015, the man filed a paternity petition as well as a petition seeking custody of the child.

Under New York State’s family law statutes, where a paternity petition is filed, the court must order the mother, the child, and the child’s alleged father to submit to genetic testing. However, testing does not have to be ordered where it is not in the best interests of the child, for, among other reasons, equitable estoppel or the “presumption of legitimacy of a child born to a married woman”.

The women opposed the paternity request on two grounds:

1. The presumption of legitimacy granted to a child “born of a marriage” (since the women had been married before the child’s birth they argued that they were entitled to the presumption of legitimacy granted to children born out of a marriage); and
2. The doctrine of equitable estoppel (i.e. the man had promised one thing but ultimately demanded the opposite).

The Decision

Presumption of Legitimacy

The court recognized that the law related to children born out of a marriage where the spouses are a same-sex couple is evolving, and that “the changing legal and social landscape requires reexamination of the traditional analysis governing the presumption of legitimacy.”

The court went on to note that:

extinguishing the presumption of legitimacy for children born to same-gender married parents would seem to violate the dictates of the Marriage Equality Act which guarantees to such couples the same “legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage” as exist for different-gender couples.

The court concluded 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. In this case, the man had not established that the child was not entitled to be provided the legal status of “product of the marriage”. The child, therefore, was legally presumed to be the child of the two women, and not the man.

Equitable Estoppel

The court outlined the legal concept of equitable estoppel, noting that:

[the essential] purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted. The law imposes the doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position

The court went on to note that, in a family law context, equitable estoppel can be used to:

• Prevent a man from asserting his paternity where he allowed the development of a strong child-parent bond between the child and another person;
• Protect the status interests of a child in an “already recognized and operative parent-child relationship” or “who was born to married parents and thereafter lived with them in a family unit”; or
• Protect the best interests of a child.

The court found that the man had not established that it would be in the best interests of the child to order the paternity test.

Instead, the evidence had shown that at the time the man had donated his sperm, he had unequivocally understood that he was doing so to permit the women to be the sole parents of any child conceived with that sperm, had known that the women would marry prior to the child’s birth, and had known that they wanted to raise the child together. In addition, the man had expressly, in writing, disavowed any parental intention, rights, or responsibilities he may have had and had also taken express steps to prevent the women from pursuing him for future child support.

Furthermore, the man’s conduct was also consistent with the written agreement not to have any parental involvement in the child’s life. He was not involved in the child’s prenatal care, had not been present at her birth, had never attended any medical or other appointments, and had not seen the child until several months after her birth. Moreover, he did not pay child support or provide any other ongoing financial support.

The court noted that, by the man’s own admission, he had donated sperm “as a humanitarian gesture, to give [the women] the ‘gift of life’ and expected only ‘contact’ with the child as a ‘godparent’ by providing her mothers with ‘a break’ or ‘help’”. The court found that:

Having led [the women] to reasonably believe that he would not assert – and had no interest in acquiring – any parental rights and was knowingly and voluntarily donating sperm to enable them to parent the child together and exclusively, representations on which [the women] justifiably relied in impregnating the mother, it would represent an injustice to the child and her family to permit him to much later change his mind and assert parental rights.

Sperm Donors and Paternity Rights

The court noted that testimony in this matter had established that the child had developed a bonded relationship with both women, stating:

…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. To permit [the man] to take over the parental role at this juncture would be unjust and inequitable.

The court went on to say that granting the request of a sperm donor for a paternity test would “effectively disrupt, if not destroy, this family unit and nullify the child’s established relationship with…her other mother” and that:

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. 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 [artificial insemination by donor].

The man’s request for a paternity test was denied.

Lessons Learned

The case adds to recent legal discussions around parenting, both in Canada and in other jurisdictions, in a time where non-traditional parenting arrangements, often involving more than two parents, non-biological parents attempting to assert parental rights, as well as technologies such as IVF, must be considered in making family law decisions. The law has not always been able to keep up with, what the court in this case called the “changing social…landscape”.

If you have questions about child support, child custody or access, or any other family law issue, contact the skillful and experienced family law lawyers at Gelman & Associates online or at (416) 736-0200 or 1-844-742-0200 for a confidential initial consultation.