Family Law Keyed to Weisberg

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Topic /161
In Re Adoption of Anonymous

Citation. In re Adoption of Anonymous, 74 Misc. 2d 99, 345 N.Y.S.2d 430, 1973 N.Y. Misc. LEXIS 1789 (N.Y. Sur. Ct. 1973)

Brief Fact Summary. A child was born by artificial insemination during a marriage. Wife and husband separated and the wife’s new husband attempted to adopt the child, claiming that the previous husband’s consent was unnecessary because he was not the parent of the child.

Synopsis of Rule of Law. A child born of consensual AID during a valid marriage is a legitimate child entitled to the rights and privileges of a naturally conceived child of the same marriage. The husband in such a relationship is therefore the parent, and his consent is required to the adoption of such child be another.

Facts. Two types of artificial insemination exist: Homologous insemination, whereby the wife is artificially impregnated with the semen of her husband (AIH); and heterologous insemination, the artificial insemination of the wife by the semen of a third-party donor (AID). AID procedures have increased due to the unavailability of adoptive children. In the present case, a child was born of consensual AID during the marriage. The husband was listed as the father on the birth certificate. The couple later separated, followed by a divorce. The separation agreement and divorce decree declare the child to be the daughter and child of the couple. The wife was granted support and the husband visitation rights. Husband faithfully visited and performed all support conditions. The wife later remarried and her husband petitioned to adopt the child. The first husband refused to consent, and petitioner suggested that the first husband’s consent was not required because he is not the parent
of the child.

Issue. Is the husband’s consent required as the parent of a child born of consensual AID?

Held. A child born of consensual AID during a valid marriage is a legitimate child, therefore the father of such child is the parent whose consent is required to the adoption of such child.
The leading case addressing this issue is a criminal case for failure to support a minor child. The court there held that the defendant was the lawful father of a dependent child born of consensual AID, with the determinative factor being whether the legal relationship of father and child exists. The court there reasoned that a child conceived through AID does not have a natural father, but does have a lawful father. Enforcement of welfare therefore was supported by the principle of equitable estoppel.

In response to claims that AID constitutes adultery of the mother, the court found that in the absence of legislation prohibiting artificial insemination, the child was lawfully begotten and not the product of an illicit or adulterous relationship.

A New York case finding that AID children are illegitimate is the only such published decision and is unpersuasive. The historical concept and statutory definition of a child born out of wedlock were enacted long before the advent of artificial insemination. AN AID is not begotten by a father who is not the husband. Since there is consent by the husband, there is no marital infidelity.

The problem is one of policy. New York has a strong policy in favor of legitimacy, so it is absurd to hold illegitimate a child born during a valid marriage, of parents desiring but unable to conceive a child, and both consenting and agreeing to the impregnation of the mother by a medically selected anonymous donor. This policy is for the protection of the child, not the parents.

Discussion. The Court based its determination that AID children born during a valid marriage are legitimate and the husband is the legal parent of such a child based on policy considerations.