Known Donor Family Law New York – Protecting Lesbian Mothers

Known Donor Family Law New York is changing. 

Many lesbian couples look to known donor family law New York prior to choosing known donors to help them have their families.  In my legal practice, I have seen this number increase steadily over the last 10 years.  Reasons for choosing a known donor include giving children a link to their biological heritage, having access to specific medical histories and providing male influences in the lives of children born into these progressive families.

The law appears to be coalescing in favor of intended mothers and a recent Appellate Division case moves known donor family law in New York further in that direction.  Before discussing the new case, let me give you a brief history of existing known donor family law in New York.known donor family law New York

Existing Family Law Treatment

Brooklyn Family Court Judicial Hearing Officer (JHO) Harold Ross, in a decision titled The Matter of L., et. al, held that as long as uncertainty exists for LGBT couples who create their families with assisted reproductive technology (ART), with both anonymous and known donors, then second parent adoptions are the best way to secure those families from this uncertainty.

In the Matter of Brooke S.B. v. Elizabeth A.  C.C., a landmark decision released in August of 2016, the New York’s highest court overturned previous New York precedent that had torn families apart for decades and ruled that non-biological and non-adoptive parents did have standing to sue for custody and visitation in the New York family court system.  While this case did not specifically address the issue of a known donor’s rights to a child he helped come to be, it brought New York family law in line with many other states which recognize “de facto” parents for the purpose of custody and visitation and prioritizes the best interests of the child in making these critical decisions.

New Case Law 

This new known donor case, entitled In the Matter of Christopher YY v. Jessica ZZ and Nicole ZZ, New York’s Appellate Division, Third Department (whose jurisdiction covers matters derived in South Central New York State to North Eastern and Central Eastern Counties in New York) addressed the issue of a known donor who sought to have a paternity test ordered by a family court.  The family court agreed with the donor and ordered the testing.  The mothers filed an appeal and the result of that appeal was to overturn the lower family court’s decision to order paternity testing for two reasons, thus codifying new known donor family law in New York.

The first reason was the marital status of the mothers.  They were married when they planned on having the child and they had an informal agreement (one drafted and executed without the benefit of legal counsel) with their donor, something that all intended mothers should have with their known donor prior to insemination.  The court stated that there existed a “presumption of legitimacy of a child born to a married woman.”  Even if this presumption exists, the court must conduct a “best interests of the child” analysis before any paternity testing can be ordered.

known sperm donorsThe key question is whether the paternity testing is in the best interests of a child.  The court determined that the presumption existed regardless of the gender of the parents, a huge statement of support for lesbian couples across New York.  However, that presumption can be “rebutted” by a donor in certain circumstances.  The court looked at the facts of this case, the existence of an agreement in which the donor stated that he would not seek paternity, and the lack of a significant relationship between the donor and the child after the child’s birth. 

To determine whether the presumption of parentage that the court established for the non-birth mother could be rebutted, they applied the concept of “equitable estoppel,” which bars a legal claim by a party if that claim is inconsistent with a prior position taken by them and relied upon by the other party.  In this case, the prior position was outlined in the known donor agreement he signed with the mothers, that he would not attempt to establish paternity,  and his lack of a relationship with the child after her birth.  Equitable estoppel prevented the known donor from proving to the court that the paternity testing was in the best interest of the child.

What does this case mean for Known Donor Family Law New York? 

This case is certainly a step in the right direction.  But these cases are fact specific and unless there is a legal instrument, such as a step or second parent adoption order, the possibility of taking a party to court will always be a financially and emotionally time-consuming specter over a family.  Another benefit of a step or second parent adoption is that is clearly and indisputably terminates the rights of a known donor, making a claim such as the one made by the donor in this case, a nullity.

Known Donor Family Law New York is moving in the right direction.  If you are considering a known donor, you must also consider how best to secure your family from unwanted paternity or visitation suits.  For answers to your questions, please contact Anthony M. Brown at anthony@timeforfamilies.com or visit www.timeforfamilies.com.

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Considering Known Sperm Donors

Lesbian couples are choosing known sperm donors in increasing numbers for a variety of very important reasons. Your choice now can make a big difference in your child’s life.

Known sperm donors are a much more viable option for lesbian couples today than they have ever been.  What greater decision can there be than the biological parent of your child? Choosing an anonymous sperm donor used to be the norm.  There are many reasons why known sperm donors are becoming the preference for lesbian couples and this article explores some of the most important ones.  But first, make sure you know the law.

One of the most cited reasons for choosing known sperm donors is to have a greater insight into the biology of your child. Having a known sperm donor’s medical history can be critical for mothers who have medical or genetic issues that they must consider before having a child.  An anonymous sperm donor file will provide some medical information, but a known donor can share his family medical history, which may be crucial for the health of your child.remarkable parenting

While medical considerations are one of the top reasons for having a known donor, knowing the emotional and social character of the donor is also an often overlooked consideration in many people’s path to parenthood.  No anonymous donor profile can show the complete picture of the person who may be the biological father of your child.

Legal considerations are also important reasons to choose between anonymous donors and known sperm donors. Anonymous donors surrender their parental rights to any children born with their genetic material upon deposit to a sperm bank or fertility clinic.  When you choose an anonymous donor, they may offer the option of allowing the child to contact them at age 18, but there is no question as to their lack of parental rights to that child.

Known sperm donors in many states, New York included, must surrender their parental rights to a child born with their genetic material after the birth of that child.  And if the mother is a single parent by choice, the known donor in many states may not surrender their parental rights at all.

In New York, as in most states, the best interest of a child is considered when allowing a genetic parent surrender their parental rights. If a known donor is surrendering his parental rights to the spouse or partner of the mother, then the court will authorize that surrender.  If, however, there is no other parent who will be assuming parental rights, the known donor cannot surrender their parental rights and will be able to sue for custody and visitation.  The mother will also be able to sue that known donor for child support.  This is the most important reason why single mothers by choice should use an anonymous donor.

One reason why lesbian moms are choosing known sperm donors is for the emotional health of their children later in life. Many studies show that the more a child knows about their biological background, be they adopted, a child through surrogacy or through known or anonymous sperm donation, the better adjusted they are as adults.  These same studies also show high satisfaction levels in the mothers who have chosen known sperm donors.

One other consideration in choosing a known sperm donor is where they live. If you envision a known donor as a parental figure in your child’s life with a more active role, the donor must be geographically able to fill that role.

Finally, many mothers choose between known and anonymous donors because of the degree of control they wish to have over their family formation. Choosing a known donor can be tricky and many mothers prefer to maintain the kind of parental control over their family that can only be experienced with an anonymous donor.

Whether you are considering known sperm donors to help you create your family or whether anonymous donors are right for you, the most important part of this decision is that you and your spouse or partner are comfortable with it and on the same page. And please make sure you know the law! For more information about known sperm donation and the legalities surrounding our families, contact Anthony@timeforfamilies.com or visit www.timeforfamilies.com today.

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