The Rebuttable Presumption of Fatherhood

As framed by the Appellate Division, Third Department, the novel issue in Laura WW. v. Peter WW., __ A.D. 3d __, __ N.Y.S.2d __ (3d Dep't 2008) was whether "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 by donor (hereinafter AID) during the marriage, but where the husband's consent to the AID was not obtained in writing." In affirming Acting Supreme Court Justice Eugene Peckham, the Court held that the provisions in the parties' separation agreement which purported to absolve the husband from any support obligation for the child was unenforceable as contrary to public policy.

Finding that even though paternity could not be based on Domestic Relations Law §73, as there was no written consent by the husband as required by that statute, the statute was not intended by the Legislature to be the exclusive means to establish paternity of a child born through AID. The Court found that under New York's common law pre-dating DRL §73, a child born of consensual AID during is a legitimate child entitled to the same rights as any other child born during the marriage.

On the facts, the Third Department found that the evidence supported the conclusion that the husband consented to his wife's decision to undergo AID.