The following summary of New York law regarding artificial insemination and surrogate parenting contracts does not constitute legal advice and should not be used as a substitute for consultation with a duly-licensed attorney.

Reproductive technologies, such as artificial insemination and in vitro fertilization, have assisted infertile couples in forming the loving bonds associated with children and family. While such couples are now medically capable of having offspring who are biologically related to at least one member of the couple, their attempts to do so may be legally complicated.

New York laws governing the status, rights and obligations of those who conceive children with the assistance of reproductive technologies have not kept pace with medical advances. But, there have been some developments. For example, the legislature has enacted a statute that clarifies the rights of married couples who use artificial insemination procedures. Because these surrogate parenting contracts have been declared void and unenforceable by a recently-enacted New York statute, individuals who enter into such contracts, however, do so at their own risk.

Artificial Insemination

In New York, a child "born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine" is the legal child of both spouses for all purposes -- inheritance, custody, financial support -- provided the couple complies with statutory requirements. First, both spouses must give written consent to the artificial insemination of the wife. This document must then be signed and notarized by the couple. Finally, the physician performing the insemination must provide a certification affirming the physician's performance of the service. Compliance with these requirements establishes the husband as the legal father of the child and terminates the sperm donor's right to claim paternity.

Yet, the statute fails to address the entire range of legal issues that can arise among those who conceive with the assistance of artificial insemination. Reportedly, at least some of the couples who undergo artificial insemination procedures are unaware of the statute and there is no requirement that physicians performing the procedure inform them. The statute is also silent regarding situations where there is only oral, not written, consent, the spouses did not obtain a physician's certification, a physician did not perform the procedure, or the woman is single. In these instances, New York case law governs.

For those married couples who fail to satisfy one or more of the statutory requirements, all is not lost. Over the years, New York courts have adopted a rebuttable presumption that children born to married women are the children of the women's husbands. In addition, a common-sense doctrine known as equitable estoppel may prevent one member of a couple who has agreed to bring a child into the world through artificial insemination and agreed to share the rights and responsibilities of parenthood from later reneging on those promises.

The artificial insemination statute offers no explicit protection for single women. But, a New York court recently ruled that an anonymous sperm donor who has waived his rights to the offspring has forfeited his parental rights, regardless of the inseminated woman's marital status. When single women receive sperm from donors who are not anonymous, the legal implications are numerous and the protections few, as was demonstrated in a case that sparked heated debate. This case involved a lesbian couple that enlisted the assistance of a sperm donor when they decided to start a family. The donor agreed that while he would have no parental rights or obligations, he would meet the child if she ever became curious about her biological origins. The donor met the child on several occasions under terms strictly dictated by the couple. When the couple refused one of the donor's visitation requests, the donor instituted a paternity proceeding. The trial court refused the donor's request based on the equitable estoppel doctrine and the best interests of the child. The sperm donor prevailed, however, on appeal. The appellate court ruled that the donor was the child's biological father and as such he had parental rights that could not be terminated without a formal proceeding.