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The same-sex spouse of a woman who gave birth following artificial insemination has the same common law parental rights as the biological mother or a man whose wife conceives in the same manner, a judge in Rochester has held.

In Wendy v. Erin, 13-13669, the biological mother argued that since her estranged spouse had never adopted the child born during their marriage, and since the Court of Appeals has consistently held that absent an adoption a non-biological partner is not a parent under Domestic Relations Law, the non-biological woman had no parental rights.

But Acting Supreme Court Justice Richard Dollinger in Rochester found that the presumption of legitimacy that applies to children born of opposite-sex marriages is equally applicable to same-sex marriages, even though the statute is unclear.

“The pervasive and powerful common law presumptions that link both the spouses in a marriage to a child born of the marriage—the presumption of legitimacy within a marriage and the presumption of a spouse’s consent to artificial insemination—apply to this couple,” Dollinger wrote. “This court holds that the non-biological spouse is the parent of this child under the common law of New York as much as the birth mother.”

Dollinger’s ruling apparently marks the first time the issue has been addressed upstate. His ruling follows but offers far more analysis than a brief controlling decision issued in November by the Appellate Division, Second Department, in Counihan v. Bishop, 111 AD3d 594 (2013).

The Counihan court unanimously reversed Suffolk County Supreme Court Justice John Bivona, saying the trial court “should have recognized the [non biological, same-sex spouse] as the child’s parent under New York law” and bestowed standing on the non-biological parent. The Court of Appeals denied leave.

Dollinger wrote 28-pages on the Rochester matter, a case that involves a couple married in Connecticut before New York had enacted the Marriage Equality Act that allowed same-sex couples to marry in New York State. Regardless, their marriage was recognized in New York as a matter of comity.

Wendy and Erin decided to have a child and in late 2011 signed a consent form agreeing to an artificial insemination process. They agreed that any children born of that process would be the legal issue of their marriage. However, the consent form was not notarized or witnessed, as required under Domestic Relations Law §73.

Both women underwent artificial insemination procedures for about two years before Wendy was impregnated. Erin attended pre-birth classes with her spouse, participated in baby showers and was present for the birth. The birth certificate lists both Wendy and Erin as the parents.

Shortly after the birth, Erin left the household, citing marital difficulties, and Wendy commenced divorce proceedings in December 2013, less than three months after the child was born.

Wendy denied Erin access to the child, and Erin responded with a suit to affirm her parental rights. The biological mother argued that her estranged spouse has no parental rights because the child was never adopted and because the consent form was not properly executed under §73.

Dollinger said that in all prior cases he found, the written consent requirement was used “as the legal equivalent of a shield,” typically by a husband disclaiming an obligation to support a child artificially conceived by his wife without his knowledge or approval.

“In this case, the roles are different: the birth mother seeks to use a strict reading of New York’s consent requirements as a sword to cut off her spouse’s rights as a parent to access to the child,” Dollinger wrote. “There is no language in the statute, or its history, suggesting that the birth mother can use a spouse’s non-compliance with the statute for the purpose sought here: to strip the spouse of the rights of access to the child born through the artificial insemination during the marriage.”

Dollinger said that even though the Marriage Equality Act and related legislation does not define “parent” or make clear that the children born during a same-sex marriage have exactly the same “legitimate” status as those born of opposite-sex unions, it would defeat the gender-neutral public policy aim of the laws to find otherwise.

The judge, noting that the child is less than six months old, expressed his intent to quickly determine access rights. Meanwhile, Dollinger awarded the non-biological spouse $750 a month in temporary maintenance, plus $2,500 in legal fees.

Jeanne Colombo, a solo practitioner in Rochester who represents the non-biological parent, said Dollinger’s ruling is a “huge” step in the evolving law of same-sex domestic relations and puts biological and non-biological parents on equal footing.

“He is breaking ground,” Colombo said. “It is huge in the sense that it establishes that both parties have equal custodial rights. What Judge Dollinger is saying is that the non-biological parent does not have to adopt a child to make that child hers. “

Colombo said her client is “thrilled” with the decision.

“She loves her child and since she is a pioneer and among the first wave of same-sex couples to marry, she is pushing for the rights of other same-sex couples,” Colombo said. “Now they get to do what heterosexual couples have always done and fight out custody.”

Joanne Best of Brockport represents Wendy, the biological mother. Best could not be reached for comment on Monday.

Susan Sommer, director of Constitutional Litigation at Lambda Legal, said that despite the Counihan decision, some same-sex parents are adopting their non-biological child to ensure that their rights are protected if they move to a state that does not recognize same-sex marriage. She said that results in a peculiar situation in which a parent goes to court in New York to adopt her own, albeit non biological, child.

“People are still encouraged to do the second-parent adoptions, even though they are legally the parents in New York, because an adoption decree will get maximum full faith and credit,” Sommer said. “It is the way to ensure that the child-parent relationship is respected. A jurisdiction that may not recognize the marriage will still recognize your adoption decree.”

Sommer, who appeared amicus curiae in support of the non-biological mother in Counihan, said the Second Department and Rochester decisions “stand for the proposition that two women who marry in New York are entitled to the exact same presumptions of parentage that different sex parents gets they have children in the marriage.”

“Many children are conceived by anonymous sperm donors, same-sex couples and different sex couples, and they are the legal children of both parents under New York law,” Sommer said.