by: Denise Seidelman and Nina Rumbold, Partners in the New York law firm of Rumbold & Seidelman, LLP
Orginally published in ASRM News November 2016
Three recent appellate court decisions in
New York, Arizona and Massachusetts, all recognizing the parental
rights of non-biological intended parents, harbinger an increasing
judicial awareness that genetics alone cannot fairly determine legal
parentage of a child born through third-party reproduction.
New York: In a truly momentous decision in that state, the New York Court of Appeals in Matter of Brooke S.B. v. Elizabeth A.C.C. (1) overruled its much criticized rule of Alison D. v. Virginia M. (2),
which famously rejected the legal concept and protections of “de facto”
parenting and limited standing to petition (the right to sue) for
custody and visitation of a child only to biological and adoptive
In the Brooke S.B.
case, decided in August, Brooke and her domestic partner, Elizabeth,
decided to have a child together. They agreed that Elizabeth would be
inseminated with donor sperm and that she would gestate the child.
Brooke participated fully in the pregnancy, was present at the birth of
the child, the child took her last name, and Brooke was the primary care
giver for the child for approximately a year after Elizabeth returned
to work. Although Brooke and Elizabeth ended their intimate relationship
approximately a year after the child’s birth, Brooke maintained an
ongoing relationship with the child for another three years until
Elizabeth cut off all contact between them. The couple were never
legally married, and Brooke had no genetic connection to the child, so
when Brooke then petitioned the New York Family Court seeking custody
and visitation with the child the question was whether the Alison D. refusal to recognize “de facto” parents applied and barred her claims.
Admitting that the 25-year-old rule of Alison D.
had become “unworkable when applied to increasingly varied familial
relationships”, the New York Court held that where there was a
pre-conception agreement to conceive and parent the child together, the
partner of that child’s parent has standing to seek custody and
Arizona: In McLaughlin V. Jones (3), the Arizona Court of Appeals ruled that, following the U.S. Supreme Court decision in Obergefell v. Hodges(4),
that state’s paternity statute must be read in a gender neutral way.
Accordingly, the statute was construed so that the wife of a woman who
gave birth was the presumed parent of her wife’s child, just as a
husband would be the presumed parent of a child born to his wife.
Kimberly and Suzan were legally married. They agreed to have a child
through artificial insemination, using an anonymous sperm donor selected
from a sperm bank. Kimberly became pregnant and in anticipation of the
birth, they entered into a joint parenting agreement and executed mirror
wills, declaring they were to be equal parents of the child Kimberly
was carrying. After the child’s birth, Suzan stayed at home and cared
for him, while Kimberly worked. When the child was almost two years old,
Kimberly moved out of the home, taking the child with her and cutting
off his contact with Suzan.
Importantly, in its October, 2016
decision, the Arizona court precluded Kimberly from arguing that Suzan
could not be the child’s parent based on lack of a genetic connection.
The court estopped Kimberly from rebutting the marital presumption
because she and Suzan had agreed to have a child together through
artificial insemination while they were married, and in reliance on
their shared intent to parent, Suzan had stayed home to care for the
child for two years before Kimberly cut off contact.
Massachusetts: Finally, in Partanen v. Gallagher,(5)
the Massachusetts Supreme Judicial Court determined that the unmarried
same-sex partner of the woman who gave birth was a presumed parent under
Massachusetts law. Here, that state’s highest court read Massachusetts’
presumed parentage law in a gender neutral way, as required by
Massachusetts law, and determined that the non-biological mother
established that she was a presumed parent under the law’s two-part
test: (1) that the child was “born to” both her and the biological
mother; and (2) that she and the biological mother jointly received the
child into their home and openly held out the child as their child.
Karen, the non-biological mother, and Julie had been in a committed,
non-marital relationship for years. They decided to have a family
together and with Karen’s acknowledgment, participation, and consent,
Julie became pregnant and had a child two separate times through IVF.
The couple brought the respective children home and jointly raised them.
They represented themselves as the children's parents in various
contexts including: “...at the children's schools…for medical
appointments…in their interactions with friends and family…”.
court held that Karen satisfied the “born to” prong of the statute
based on her having “fully acknowledged, participated and consented”
to Julie using IVF with the shared intent that they would both be
parents to the resulting children; and after each child’s birth, Karen
and Julie brought the children into their home and represented
themselves publicly as the children’s parents.
A Diminishing Role for Genetics in Determining Parentage?
all three cases relied, at least in part, on the parties’
pre-conception intent to jointly parent in order to determine the
parental status of the non-biological parent. While these decisions most
dramatically impact the LGBT community, who are required to rely on
third-party reproduction and donated genetic material to conceive a
child, judicial reliance on intent, rather than genetics, to determine
parentage reflects a much needed shift in the context of third-party
reproduction and may indeed be an indication of a growing trend to do
As recognized by the New York Court of Appeals in Brooke S.B.,
biology and adoption alone are an “unworkable” rubric under which to
determine legal parentage where an assisted reproduction arrangement
involves a third party. Hopefully, the law will continue to evolve in
the area of collaborative reproduction to a point where those intending
to be parents are charged with parental responsibility and those without
that intent are not unfairly burdened with it. While we await
consistent jurisprudence and laws across the country, the increasing
judicial recognition of the importance of intent to determine parentage
is encouraging. It should also highlight how important it is to
ascertain and accurately document all participants’ intentions as they
undertake to build families through assisted reproduction.
1 In the Matter of Brooke S.B. v. Elizabeth A.C.C., 2016 NY Slip Op 05903 at *2 (Aug.30,16)
2 Alison D. v. Virginia M., 77 N.Y. 2d 651 (1991)
3 McLaughlin v. Jones., 2016 Ariz. App. LEXIS 256, 2016 WL 5929205 (Oct. 11, 2016)
4 Obergefell V. Hodges,
_ U.S. _, 135 S. Ct. 2584 (2015). in which the United States Supreme
Court held that the right to marry is a fundamental right which cannot
be denied to same-sex couples.
5 Partanen v. Gallagher, _N.E.3d _, _, SJC-12018, 2016 WL 5721061 (Mass. Oct.4, 2016)
“Legally Speaking: A Column Highlighting Recent Court Decisions Affecting the ARTs and the Families They Create” returns to ASRM amidst extraordinary legal developments impacting the assisted reproductive technologies. The column will appear online monthly in ASRM News, with links to court decisions for those who wish to delve directly into the courts' opinions. There will be guest authors to add expertise and unique perspectives related to significant legal topics. “Legally Speaking®” will continue its commitment to not only report on new and noteworthy court cases but also analyze their potential impact and significance on the practice of ART. --Susan Crockin, JD