On Jan. 25, 2018, the Appellate Division, Third Department, issued a significant decision in Matter of Christopher YY v. Jessica ZZ, 2018 NY Slip Op 00495. Underlying the court’s determination is the conundrum which it describes as follows: “Application of existing case law involving different-gender spouses, addressing whether the presumption [of legitimacy] has been rebutted, to a child born to a same-gender married couple is inherently problematic, as it is not currently scientifically possible for same-gender couples to produce a child that is biologically ‘the product of the marriage’ [citations omitted].”

Respondents Jessica ZZ (the “mother”) and Nichole ZZ (the “wife”) were married at the time of the conception of the child, who was born in August 2014. The child was conceived by means of artificial insemination, utilizing sperm donated by petitioner, Christopher YY. A written, self-created agreement between petitioner and Respondents preceded the impregnation of the mother (Jessica ZZ). By the terms of the agreement, apparently put together by the parties without the assistance of an attorney: Petitioner agreed to donate his sperm to enable Respondents to have a child together; petitioner waived any claims to paternity of the child, along with any rights that he might have to custody or visitation; and, Respondents waived any claim to child support from petitioner. At birth, “the child was given the wife’s surname and respondents lived together as a family with the child and the mother’s other two children.” Petitioner first met the child when she was a month or two old.

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