1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

3.2.3.  Matter of William “TT” v. Siobhan “HH” (2000)

In Matter of William “TT” v. Siobhan “HH,” a lesbian couple procreates using one partner’s ova and the sperm from a family friend – a gay man, William TT, who agreed to provide gametes in exchange for limited parental rights in the baby.  After the baby was born, William, like Michael H, makes claim to parenthood, despite the unconventional way in which he came to father the child.  Again, the court must deal with the issue of “who is family” in a topsy-turvy world.  Both Michael H. and William TT were gamete-providers to a woman in a relationship with another partner, but does, or should, genetic authorship entitle them to the role of parent?  Or, do we want to keep them out if it is against the mother’s wishes?

Michael H. had a different result than William TT.  In the former case, the court denied the biological father any legal relationship with his biological daughter, divesting him completely of his claim to parenthood.  From the procreative standpoint, the reasoning was sound.  The two-parent family is the fundamental reproductive unit of traditional American society, literally the functional reproductive organ of our culture.  In the view of the U.S. Supreme Court, it deserved the highest legal protections.  To have held otherwise, would have compromised its integrity.  William TT was luckier.  Not only did the court recognize his paternity, but against the wishes of the mother, they gave him broad visitation rights to his children. 

Why the difference?  One reason was that Michael H. threatened the health of the traditional reproductive organ of American society, but William TT did not.  In the Michael H case, there were three parties making claim to the child.  Carole – the biological and legal mother, Gerald – Carole’s legal husband, and Michael – the child’s biological father.  The Court’s job was to choose which of the two men would be the “natural” father for the purposes of the law.  Its decision was facilitated by a state statute that defined a child born of a married couple to be the couple’s natural child.  In deciding in Gerald’s favor, the Supreme Court simply applied the statute to the facts in front of it.  When the child was born, Carole and Gerald were married, albeit living apart, but statutorily that made Gerald her father.  This rule created a fence around the family, legally protecting the reproductive unit and the parenting choices that the married parents made.  If mate choice is so evolutionary important from the genetic perspective – humans picks their marriage partners because of the genes they carry – it is important to shield these decisions from interlopers.  For William TT, the existence of a traditional family was not a consideration.  The question for the court was different.  Its decision was not about who would be the better father, but whether one father was better than none.

William TT and Michael H both successfully procreated, seceding their genes to another generation.  Why should they care so much about whether their paternity is recognized?  Perhaps the reason is advertisement.  A part of any male’s strategy to reproduce must take into account his ability to attract mates.  To interest females in his desirability, he may chose any number of different approaches aimed at establishing himself as a good gene donor, as well as a capable provider for her children.  Carole may well have chosen Gerald D. to father her children because his great wealth ensured that they would be well provided for, and likely to have considerable reproductive opportunities of their own.  Health and vitality in a male are another important consideration for females because it suggests good genes to make fit children.  What better way to market himself then to show off the fruits of his labor.

BODY: SUMMARY Albany County Family Court Family Law (Copyright 2000 New York Law Publishing Company, New York Law Journal, October 2, 2000)

RESPONDENT MOTHER had two children by being artificially inseminated with the sperm of petitioner. Respondent and her lesbian live-in partner had raised the children together for several years. They broke up but continued to parent the children together. The parties had executed a written document formalizing limited visitation for petitioner father. After several arguments concerning access to the children, petitioner filed this request for a set visitation schedule and for more frequent visitation. The mother, who considered petitioner a sperm donor and not a parent, argued that visitation should be limited to the pre-existing agreement. Looking at the best interests of the children, the court ruled that petitioner should be allowed greater visitation on a more traditional visitation arrangement, despite the children's unconventional family situation.

Judge Maney

MATTER OF WILLIAM "TT" 1 v. SIOBHAN "HH" 1 QDS:04703218-The issues of this proceeding having duly come on for a hearing before me as one of the Justices of this Court at a regular term held in and for the County of Albany on April 10, 2000, and at adjourned dates thereafter, and having considered the proof submitted by the parties and the Law Guardian, and due deliberation having been had thereon,

NOW, I do hereby make the following finding of the essential facts which I deem established by the evidence and reach the following conclusions of law:

Petitioner (hereinafter the father) is the biological father of six-year-old Liam and four-year-old Faolain. Respondent (hereinafter the mother) is the biological mother of the children. The children live with their mother and have lived with her since their birth.

The children were the result of a planned pregnancy by the mother and her former partner, Anita BB.1 The children were conceived through artificial insemination whereby the father was the known sperm donor. The mother and Anita BB. are now separated as a lesbian couple, but - at the time of the hearing - were living together with the children in the same household and were continuing to share parenting duties as they had since the children were born. The Court has been advised, however, that they no longer reside together in the same household.

After Liam was born, the mother and Anita BB. agreed to allow the father and his partner, Randy HH., (N1) visit the child from one to three times a week at the mother's home. Shortly after Liam turned two years old, the father took Liam for an occasional overnight visit. Following Faolain's birth, however, the father and mother, along with their partners, signed a written document formalizing the father's visitation schedule. This agreement provided, as is relevant here, that the father could visit with the children one day a week, two weekend days (including an overnight) a month and one week a year during the months of July or August. All financial matters relating to the children (child support, child care, or other expenses) were the responsibility of the mother and Anita BB.

According to the mother, the purpose of this agreement was to clarify the father's role with respect to the children. She claimed that she and Anita BB. never intended the father to be a member of their family unit, but wanted him to be an important part of the children's lives. The mother views the father's request for additional visitation as an attempt to threaten her family.

After signing the agreement, the father continued to exercise regular visitation with the children consistent with the parties' agreement. The father testified that after the mother and Anita BB. moved into separate residences in May 1988, he began to encounter difficulties with exercising his visitation with the children, which apparently conflicted with Anita BB.'s time with the children. He claimed that Anita BB. believed that she could take time out of his visitation when she felt like it, with little or no notice.

Difficulties continued even after the women reconciled and moved back in together in February 1999. In July 1999, following an argument between the father and mother, the mother ordered the father to stay off her property and to pick up and drop off the children on the sidewalk in front of her home. He filed this petition shortly thereafter.

At the hearing, the parties agreed and stipulated that the mother will have sole legal custody of the children and the father will have full access to the children's educational, medical and health care records and providers. The sole issue remaining, therefore, is the father's visitation schedule with the children. The mother contends that the father's visitation should be limited to the times provided for in their agreement. The father contends that it would be in the best interests of the children that there be a set visitation schedule and asks that he be granted more frequent visitation than the agreement allows.

The mother testified that the children view the father as their father and that they love him. Nevertheless, the mother views the father as the sperm donor, not as the parent of her children. The mother testified that she chose the father as a known sperm donor based on an understanding that the father's visitation rights would be limited to what was set forth in their written agreement. Had she known that he would seek increased visitation on a regular basis, she would have chosen not to have her children with him. The mother also testified that Anita BB. has provided financial and emotional support for the children throughout their lives. The mother and Anita BB. no longer have an intimate relationship, but continue to cooperate and support each other in parenting the children together.

The Court notes that neither the mother nor any of the other witnesses testifying at the hearing expressed concerns regarding the adequacy of the father's parenting skills or claimed that the children were being adversely affected by the current visitation arrangement or would be harmed by visiting their father on a more frequent basis.

The 29-page report of Randy Cale, Ph.D., the court-ordered psychologist, was entered into evidence as Court exhibit No. 1. Cale's report was based upon interviews and psychological assessments of the mother, the father, Randy HH. and Anita BB., interviews with the children, and collateral telephone conversations with the children's pediatrician and teachers. Cale found that the mother and Anita BB. have served as the children's primary psychological parents and have provided excellent care for them, despite having struggles in their own relationship. He noted that the father and Randy HH. have been involved on a consistent basis in the children's lives and that the children value that relationship. Cale noted that the father had not been involved in any decision-making process with respect to the children. Nevertheless, he had no concerns about the father's ability to care for and/or parent the children.

Cale opined that the parties' understanding as to the father's role in the children's lives was not spelled out sufficiently, resulting in misinterpretation and conflict. Cale did not believe that at this point the parties could work together more cooperatively. He opined that it would be appropriate if the father had consistent, regular access to the children through a relatively traditional timesharing arrangement.

Liam is entering grade school in the Fall and is enrolled by the mother in numerous sport activities on Mondays, Tuesday and Saturdays. The Court notes that the mother has enrolled him in some of these activities in contradiction of the Court's temporary visitation order. Liam and his sister are bright, energetic children, and appear to be well adjusted. They have no reported physical or mental concerns or disabilities. Liam has experienced difficulties with making transitions from one activity to another. This difficulty is being adequately addressed through structure and routine in his day.

Conclusions of Law

The issue presented here what is the appropriate schedule of visitation between the father and his children. Initially, while the Court is cognizant of the parties' written agreement and understands its underlying purpose (see, Respondent's exhibit C), the Court is not bound by it. Rather, in determining the appropriate visitation schedule, the focus here - as in all custody and visitation matters - is the best interests of the children (see, Eschbach v. Eschbach. 56 NY2d 167).

In this case, the children are fortunate to have two dedicated and concerned biological parents who love and care for them. The evidence adequately establishes that the father is a fit parent, who has been consistently involved with the children since their birth. To the mother's credit, she realized that it was important for the children to know their father and, through her actions, encouraged their relationship. The children recognize the father as their biological father and have developed a close and loving relationship with him. The Court-appointed psychologist, who had the opportunity to interview all of the adults and children in this matter, recommended the father have visitation on a more traditional visitation arrangement despite the children's nonconventional-family situation. The Law Guardian, who interviewed the children, agreed that this recommendation was in the children's best interest. The Court concurs.

Clearly, under the facts presented here, the relationship between the children and their father must be protected and encouraged, not restricted. Accordingly, the Court finds that it is in the best interests of the children that they have regular and frequent visitation with the father and that a precise, consistent and regular visitation schedule is established. This schedule, recited below, takes into consideration the children's ages and maturity, the father's willingness and ability to care for them, the recommendations of the Court-appointed psychologist and the Law Guardian. Therefore, it is

ORDERED that Pursuant to the parties' stipulation, respondent/mother will have sole legal and physical custody of Liam and Faolain; and it is

ORDERED that petitioner/father will have visitation with Liam and Faolain on the following schedule, with such other and further visitation as the parties may agree:

a. Alternate weekends from Saturday at 9:00 a.m. until Sunday at 6:00 p.m. commencing the second Saturday after the date of this order. If the Monday following petitioner/father's weekend visitation is a holiday which the children have off from school, then visitation will be extended until 5:00 p.m. on Monday.

b. Wednesday nights from after school until 7:00 p.m. If the children are off from school on Wednesday, visitation will be from 4:00 p.m. until 7:00 p.m.

ORDERED that respondent/mother is not to schedule any non-urgent appointments or activities for the children on Wednesdays or on weekends, unless the parties agree. Petitioner/father will see that, while in his custody, the children participate in all school functions, regularly scheduled activities, competitions or performances in which the children are involved; and it is

ORDERED that each parent will be entitled to have the children with him/her for an extended peroid of two weeks during the children's summer vacation. Each parent will notify the other, in writing, on or before April 1st of each year specifying the weeks selected. If the parents cannot agree, the respondent/mother's choice will prevail in even-numbered years and plaintiff/father's choice will prevail in odd-numbered years. The children will have free access to the telephone so that they may speak with the other parent during vacations; and it is

ORDERED that the parties will alternate Thanksgiving Day, Christmas Eve and Christmas Day. The Thanksgiving Day holiday will be from 10:00 a.m. to 8:00 p.m. The Christmas Eve holiday will be on December 24th from after school until 8:00 p.m. or, if there is no school, from 10:00 a.m. to 8:00 p.m. The Christmas Day holiday will be on December 25th from 10:00 a.m. until 8:00 p.m. Petitioner/father will start this alternating cycle and will be entitled to Thanksgiving Day in 2000; and it is

ORDERED that petitioner/father will have visitation with the children on Father's day from 10:00 a.m. to 6:00 p.m. Respondent/mother will have visitation with the children on Mother's Day from 10:00 a.m. to 6:00 p.m.; and it is

ORDERED that the party who does not have physical custody of the children on their birthdays will be entitled to visit with the children on those days for a two hour period, at a time that the parties agree; and it is

ORDERED that the parties will alternate all week-long non-summer school vacations with respondent/mother having physical custody of the children during the first non-summer school vacation after the date this order is signed. Non-summer school vacation visitation will begin at 6:00 p.m. on Sunday and end at 9:00 a.m. on the following Saturday, unless the parties agree otherwise: and it is

ORDERED that petitioner/father will provide transportation to and from visitation. Pick-up and drop-off will be at the children's school or at respondent/mother's residence as appropriate to the schedule; and it is

ORDERED that the mother, the father, and the children will have unrestricted daily telephone access to each other; and it is

ORDERED that, as the parties' have stipulated, petitioner/father will have full access to the children's educational, medical and health care records and providers; and it is

ORDERED that respondent/mother will keep petitioner/father informed of all major decisions regarding the children's health, education, and medical treatment, and it is

ORDERED that respondent/mother will keep petitioner/father apprized of the children's school(s) and medical provider(s); and it is

ORDERED that the parties will advise each other and the Law Guardian of their current address and any proposed changes in their place of residence; and it is

ORDERED that the parties will encourage and facilitate visits and do nothing to denigrate the other parent in the presence of the children, nor permit any third party to do so.

This constitutes the decision and order of this Court.

 

n1. Fictitious names.