This is actually a story from a few weeks ago that I didn’t get around to, but there are enough of these in the news lately to make it worth a look. In a report published at the Daily Beast you can read about a lesbian couple who made use of a sperm donation from a mutual friend to conceive a child. This isn’t all that unusual in the United States these days, including for traditional, heterosexual couples. So the happy spouses were set for a bright future and a growing family, right?
Yeah… not really. Things didn’t work out very well at all. The donor (and biological father) decided approximately seven months after the child was born that he wanted to be “more involved” in the baby girl’s life. With that, he went to court and sued for visitation rights. This has dragged on for more than two years in the courts and now a judge has ruled against the biological father, saying that he can’t even demand a paternity test to prove that he’s the one who did the deed.
A New York man who supplied his sperm for a lesbian couple’s at-home insemination was denied a paternity test by a state appeals court last week, possibly ending his battle for parental rights over the now 3-year-old girl who was born as a result of his donation.
In a unanimous ruling that put family before biology, a five-judge panel overturned a county family court’s 2015 order that the child undergo a paternity test, finding that not only would the test be against the child’s best interests, but asserting that the “presumption of legitimacy”—a legal term for the general assumption that a child born to a husband and wife is the biological child of both parents—extends to same-sex couples as well (PDF).
“We believe that it must be true that a child born to a same-gender married couple is presumed to be their child and, further, 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,” Justice Robert Mulvey wrote in a 19-page decision.
The details of their story become even more convoluted the more you read into it. As it turns out, none of them have the kid at the moment. The sperm donor has been shut out in the courts, but the two mothers had some sort of negligence claim brought against them and the little girl has been in a foster home since 2015. So instead of having “three parents” she currently has none, at least in terms of building a family household.
From the strictly legal perspective, this story provides a great deal of food for thought. The courts in New York have now basically ruled that any married couple has supremacy over a child regardless of biology. The judge in the case said the court was “compelled by the Marriage Equality Act” to ensure that all married couples were treated the same under the law, just as if one of them had fathered the child. Since the biological father was the one doing the asking, he was shut out.
But then there was that guy in Kansas a few years ago who had similarly made a “donation” to some lesbian friends with the written understanding that he was helping them out and wasn’t a responsible sire. That didn’t matter to the judge who ordered him to pay child support anyway after the lesbians changed their minds. He later had that order reversed on appeal, but it was still a close call and cost him a bundle in legal fees.
These are all things to consider before any of you men decide to be a nice guy and make such a “donation” in the future. For that matter, I’d be careful about donating at a clinic because they will still keep records of who was donating. By the same token, it should also serve as a reminder to any couples who are thinking of asking someone to be a donor. Human relationships are tricky and what seems obvious and easy today may turn into a nightmare tomorrow.
I’ve come close to just suggesting that we scrap the entire donation process and have folks do it the old-fashioned way. But that’s not really fair either. Many childless couples of whichever gender makeup would no doubt be thrilled to give a baby a good home. Still, you need to proceed with caution. Once the deed is done there’s no going back, and the courts will not always act in what would appear to be an obvious and rational fashion.