Family Law

Using A Turkey Baster To Have A Kid? That’s Not What It’s For! Also, It’s A Terrible Idea Legally Speaking

A little money upfront with doctors and lawyers can save you a lot of heartbreak down the line.

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When you work in the field of assisted reproductive technology (ART) law, you see a lot of “turkey-baster” cases. That’s where people skip the whole annoying process of going to a doctor and undergoing testing and procedures. Instead, they use common household objects to help make a baby.

Using a doctor is, of course, the medically advised way to go. While not every genetic uncertainty can be avoided, the process of using a medical professional at least minimizes unexpected diseases and conditions. And it’s no surprise that it’s also the best way to go legally. Many states, such as Colorado and New York, have statutes that provide for a presumption of parental rights in a donor situation. But those statutes generally require the involvement of a licensed physician, or other appropriate medical provider, as opposed to a kitchen utensil.

But I get it. Doctors and lawyers, like diapers and wipes, are expensive.

But using the turkey baster method injects deep uncertainty into the process of establishing parental rights. Many courts have ruled that a sperm “donor” in an at-home insemination arrangement is in fact the legal parent to the child, complete with the joy of custody and the burden of child support. On the other hand, one recent New York State Court of Appeals decision went the other direction and denied the sperm provider parental rights.

The Do-It-Yourself Conception Plan. The case of In the Matter of Christopher YY v Jessica ZZ and Nichole ZZ involved a married same-sex female couple that had sought the help of man to conceive a child. Petitioner (the sperm donor) had volunteered to help the couple. With his own female partner present, he signed a contract that he himself had written (most likely with the assistance of the internet), and which contained a clause that he would not seek any parental rights to any child conceived using his donation. The contract also contained a clause stating that the same-sex female couple would not seek child support from him. Drafting the contract was a pretty bold move, because the Petitioner wasn’t a lawyer. All of the parties signed the agreement, and the donor provided the goods. One of the women then inseminated her spouse with the sperm. Sounds like a wild night!

Approximately nine months later, a baby girl was born. The donor eventually came to visit the couple, and clearly got a case of baby fever, because babies are pretty cute. The court’s opinion isn’t clear on how the drama started, but after a disagreement over visiting time, the donor filed a petition with the court asking that a paternity test be ordered. The Family Court initially ruled in the donor’s favor. But instead of applying the artificial insemination statute I alluded to above, it went another, way worse direction; it refused to apply the marital presumption standard to the same-sex couple parents. Wisely, moms appealed.

So Many Ways For This To Go Wrong. The underlying scenario is not new. The most famous case in this area is the “Kansas Craigslist Case.” There, it wasn’t the donor trying to assert parental rights. And it wasn’t one of the mothers seeking child support. Instead, it was the State of Kansas that sought to impose parental rights on the donor, against the wishes of all of the parties. Kansas wanted the donor to cover the state assistance that it had given to the couple, and specifically cited to the state’s statute requiring that a medical professional be involved in the donation. After many years of fighting the case, the non-biological mother finally won the right to be recognized as the parent of her child, over the poor donor.

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Not Recognizing the Sanctity of (Same-Sex) Marriage. Back in New York, the appellate court unsurprisingly found that the lower court’s decision not to apply the marital presumption violated the legal effect of the NY Marriage Equality Act. That law guarantees same-sex couples the same “legal status, effect, right, benefit, privilege, protection or responsibility related to marriage” as different-sex couples. And, of course, the Supreme Court recognized the Constitutional protection of same-sex marriage along with its “constellation of benefits.”

Rebuttable Presumption = Weighing The Interests. The appellate court determined that, just like different-sex married couples, the spouse in a same-sex married couple is entitled to a legal presumption of parenthood. However, unlike the irrebuttable presumption nicely bestowed when insemination is performed by a licensed physician, the marriage presumption is rebuttable, and the court must look to the best interests of the child. Here the court examined the parent-child relationship established by the wife, and the contract that the donor had written himself, and ruled against donor’s attempt at establishing paternity.

A Warning to Future Donors. Yes, donating is an awesome, amazing, and life-changing gift. But ye generous souls, think carefully about who you are donating to, and how you might feel about either wanting a relationship with the child you help create, or being forced into a relationship with a child that you never expected to be in. That would be terrible. This is definitely a place where a little money upfront with doctors and lawyers can save you a lot of heartbreak down the line.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.

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