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Child SupportHusband Required to Pay Child Support for Artificially Inseminated Child

April 14, 2008

On appeal, a court ruled that a husband can be deemed the legal parent of a child born to his wife, where the child was conceived as a result of artificial insemination during the marriage, but where the husband’s consent to the artificial insemination was not obtained in writing.

Domestic Relations Law § 73  provides that:

Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, natural child of the husband and his wife for all purposes. . . . The aforesaid written consent shall be executed and acknowledged by both the husband and wife and the physician who performs the technique shall certify that he [or she] had rendered the service.

The problem in Laura Ww. v Peter Ww was that the husband never signed the consent. In fact, shortly after the wife was artificially inseminated, the parties separated. At the time they separated, parties agreed, in writing, that the husband would not be responsible for paying child support the artificially inseminated child.

The Court declared the separation agreement unenforceable.

Indeed, the agreement left the child fatherless without any hearing or analysis of the child’s rights and interests. Given that “the needs of a child must take precedence over the terms of the agreement when it appears that the best interests of the child are not being met,” we agree that the parties’ agreement which preceded any determination of legal paternity to leave the child without the husband’s support cannot stand

The Court relied on New York’s strong presumption that a child born to a marriage is the legitimate child of both parents. In addition the court announced that it would “follow the lead of other jurisdictions that impose a rebuttable presumption of consent by the husband of a woman who conceives by[artificial insemination, shifting the burden to the husband to rebut the presumption by clear and convincing evidence.”

In addition, the court stated that the doctrine of equitable estoppel also precluded the husband from “seeking to disclaim paternity of the parties’ child, whose best interest is paramount.”

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