Home Insemination: A cautionary tale of the parental rights of mother’s wife.

A same sex married female couple, Kylee and Linsay, sign an online sperm donor contract with a friend for use of his sperm attempting to relieve him of any responsibility for any children so conceived. The couple artificially inseminate Kylee at home with the friend’s sperm, and Kylee conceives & delivers a boy. The women cross out ‘father’ on the birth certificate worksheet and write in Linsay’s name on the corresponding line. And somehow, their names both appear on the birth certificate.

The couple divorces and the parental rights of the non-genetic mother are at issue. The Idaho Supreme Court holds that its artificial insemination (AI) statute bestows parental rights equally to same sex married parents as heterosexual married parents, but only if statutory requirements are met.

Idaho overrules the Linsay’s marital presumption of paternity and awards sole custody to Kylee and excludes ex-wife Linsay, because

  1. Mother’s wife, Linsay, is not a genetic parent.
  2. Linsay did not satisfy the AI statute’s requirements for written consent, state paperwork filing (which has never actually been done in Idaho), and physician assisted insemination.
  3. Linsey did not sign a voluntary acknowledgment of paternity form under Idaho law (which she could not in truth sign).
  4. Linsay did not file a parentage action to establish legal parentage.
  5. Linsay did not adopt the child to establish legal parentage.

Further, the online agreement signed by Linsay, Kylee, and sperm donor contained boilerplate language that did not address the rights of the non-donor spouse. The court did not grant Linsay any visitation with the child and denied Kylee’s request for attorney fees.

The lessons here are crucial to parental rights of a non-genetic spouse and a gamete donor: 1. hire attorneys to draft the gamete (and/or embryo) donor contract such that all parties are represented and protected, 2. use a physician to conduct AI, and 3. file a parentage action to establish certain parenthood.

Potentially, Kylee or a state Child Support Enforcement Unit could seek child support from the unsuspecting sperm donor. While costing extra money, a personalized & lawyer drafted contract, physician assisted insemination, and a parentage action are essential to ensuring parentage of children born via assisted reproductive technology.

Links for more detailed information:

Gatsby v. Gatsby (Idaho, 2021)

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