BINGHAMTON, N.Y. — A married same-sex Chemung County couple can rebuff an effort by a sperm donor to exert parental rights on the daughter born as a result of the arrangement.
A midlevel New York appeals court ruled in favor of the couple, suspending a decision by the Chemung County Family Court that originally ordered a paternity test to determine the donor's parental rights.
In a 19-page decision released Thursday, the New York Appellate Division, Third Judicial Department, said the lesbian couple has the same parental rights as a traditional couple in a sperm donor arrangement. The mother and wife are the presumed natural parents, the court ruled, and the donor has no specific legal right to be a part of the rearing of the child no matter how the child was conceived.
"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 the wife, her other mother." Justice Robert Mulvey wrote in the unanimous decision of the five judge panel. "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."
Parties in the suit were identified as only Christopher YY, the donor; Jessica ZZ and Nichole ZZ, the mother and wife, respectively.
Justices said New York's same-sex marriage law affords gay married couples the same legal rights as traditional couples, and the nature of marriage arrangement would not undermine the basic tenets of a legal union.
"I don't speak for my client," Pamela B. Bleiwas, the Ithaca lawyer representing the sperm donor, said when contacted by telephone on Monday. "I'm not going to answer for him on the PR front."
The mother's Elmira lawyer, Ouida F. Binnie-Francis, did not respond to a request for comment.
Married in August 2014, the same-sex couple set up an informal agreement with the donor — known through family — to supply sperm in a process that occurred at the mother's home.
The couple's acquaintance "volunteered to donate his sperm so that (couple) could have a child together, expressly waived any claims to paternity with regard to any child conceived from his donated sperm and further waived any right to custody or visitation, and respondents, in turn, waived any claim for child support," the court said.
Following birth, however, a disagreement ensued about visitation rights. The court noted that the donor was not involved in pre-natal doctor visits, was not present at the birth and did not see the child until she was 1 or 2 months old. The child was 7 months old when the paternity action was filed.
Yet, the court found the donor abandoned his rights to parental authority through a previous informal agreement.
"He unequivocally understood that he was doing so to permit the mother and the wife
to be the sole parents of any child conceived, aware that they wanted to raise the child together and planned to marry, as they did prior to the birth of the child," the court wrote in its opinion.
Subsequent to the 2015 Family Court hearing in which a paternity test was approved, the Appellate division was informed the child had been placed in foster care "for a lengthy period" and "there are reportedly neglect petitions pending against" the parents. Even with the developing circumstances of the child, the donor is not entitled to paternity, the court ruled.
Because the Appellate Division decision was unanimous, the father is not automatically entitled to a review by the state's highest court, the Court of Appeals. The court must grant permission to appeal, and that is a rarity.
Bleiwas would not say if she would ask for a permission to appeal.
Read the decision here:
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