C.M., Plaintiff v. C.C., Defendant

• Citation: 377 A.2d 821,152 N.J.Super 160
• Parties: Page 160 152 N.J.Super. 160 377 A.2d 821 C. M., Plaintiff, v. C. C., Defendant. Juvenile and Domestic Relations Court, Cumberland County, New Jersey
• Decision Date: 19 July 1977
• Court: Superior Court of New Jersey

Page 160

152 N.J.Super. 160

377 A.2d 821

C. M., Plaintiff, v. C. C., Defendant.

Juvenile and Domestic Relations Court, Cumberland County,

New Jersey.

July 19, 1977.

Robert E. Bailey, Vineland, for plaintiff.

Philip L. Lipman, Vineland, for defendant (Lipman, Antonelli, Batt & Dunlap, Vineland, attorneys).

TESTA, J. C. C., Temporarily Assigned.

This is a case of first impression, presenting a unique factual situation with no reported legal precedents directly on point, in this or any other jurisdiction.

C.C. had a child who was conceived through the use of sperm donated by C.M. C.C. testified that she had been discussing with C.M. the possibility of having a child by artificial insemination, inquiring of him whether she should ask one of his friends to supply the sperm. C.M. suggested that he provide it and C.C. agreed to his suggestion. C.M. testified that he and C.C. had been seeing each other for some time and were contemplating marriage. She wanted a child and wanted him to be the father, but did not want to have intercourse with him before their marriage. Therefore, he agreed to provide the sperm.

After the decision to have the child was made, the testimony of both parties are substantially the same. C.C. and C.M. went to a doctor who referred them to a sperm bank. The doctor at the sperm bank refused to allow its facilities to be used. However, C.C. learned, as a result of her conversation with the doctor, of a procedure for artificial insemination using a glass syringe and a glass jar.

Over a period of several months, C.C. went to C.M.'s apartment where they attempted the artificial insemination. C.M. would stay in one room while C.C. went to another room to attempt to inseminate herself with semen provided by C.M. After several attempts over a period of several months, C.C. did conceive a child.

C.M. testified that until C.C. was about three months pregnant, he assumed he would act toward the child in the same manner as most fathers act toward their children. C.C. denies this, testifying that C.M. was to be only a visitor in her home much as any of her other friends. In either case, at that point the relationship between C.M. and C.C. broke off. This present application is a request by C.M. for visitation rights to the baby. His request is strenuously opposed by C.C.

A natural father is entitled to visitation rights with respect to his illegitimate children. See R. v. F., 113 N.J.Super. 396, 273 A.2d 808 (Cty.Ct.1971). The key issue in this case is whether C.M. is the natural father of the child or whether he should be considered not to be such because the sperm used to conceive was transferred to C.C. by other than natural means. C.C. does not dispute that the sperm used to conceive the child was provided by C.M.

The question of who is the father of a child conceived by artificial insemination has been addressed by a few courts in the United States and has been addressed by authorities in the field of family law. In most cases the donor is unknown, and the issue involves whether the husband of the mother is, in fact, the father. In Strnad v. Strnad, 190 Misc. 786, 78 N.Y.S.2d 390 (Sup.Ct.1948), the New York court considered a situation where a woman was artificially inseminated by a third-party donor with the consent of her husband. The court held that the husband was entitled to visitation, also holding that the child had been "potentially or semi-adopted by the defendant." The husband was "entitled to the same rights as that acquired by a foster parent who has formally adopted a child, if not the same rights as those to which a natural parent under the circumstances would be entitled." It was the court's opinion that if the mother was artificially inseminated with the consent of the husband, the child would not be illegitimate.

In 1963 a New York court considered the case of Gursky v. Gursky, 39 Misc.2d 1083, 242 N.Y.S.2d 406 (Sup.Ct.1963). In that case an annulment was granted by the trial court because the husband was unable to consummate the marriage. When the couple had discovered the husband's infirmity, they decided that the wife should be artificially inseminated with the semen of a third-party donor. Both husband and wife signed the proper consent for the procedure. The husband agreed to pay all expenses and signed a contract for waiver of liability as well as for medical and/or surgical treatments. As a result of using the procedure a child was born. The birth certificate listed the wife as mother and the husband as father. The issue raised in the appellate court was whether the child was legitimate.

The court discussed the Strnad case, but noting that the child had not been legally adopted, held that "the court's conclusion that the child was legitimate cannot logically be sustained." The court also quoted from an unreported case which said, "(w)here the precise issue of legitimacy has been squarely presented for determination, it has been held that heterologous artificial insemination by a third-party donor with or without the consent of the husband, constitutes adultery on the part of the mother and, that a child so conceived is not a child born in wedlock and is therefore illegitimate (Doornbos v. Doornbos, No.,54 S. 1498 (Superior Court, Cook Co., December 13, 1954))." The court in Gursky concluded (242 N.Y.S.2d at 410-411) that "the child in the instant case, which was indisputably the offspring of artificial insemination by a third-party donor with the consent of the mother's husband, is not the legitimate issue of the husband." However, the court held that in light of the husband's consent to the procedure, he was obligated to support the child, basing its decision on theories of implied contract and equitable estoppel.

A California court considered a similar situation in People v. Sorenson, 68 Cal.2d 280, 66 Cal.Rptr. 7, 437 P.2d 495 (Sup.Ct.1968). In that case a sterile husband and his wife consented to her artificial insemination, resulting in the birth of a child. For the following four years they lived together in a normal family relationship. When the husband and wife were divorced the wife stated that she wanted no child support from her husband. However, under the divorce decree "the court retained jurisdiction regarding the possible support obligation of plaintiff in regard to a minor child born to defendant." Later, when the wife became ill and unable to work, she applied for public assistance, which was given to her until she was able to resume work. Although the district attorney demanded child support, her former husband did not support the child. A municipal court found him to be in violation of the state's Penal Code and placed him on probation on condition that he make certain monthly payments for support.

In reaching a decision, the court noted that the determinative factor was whether the relationship of father and child existed. It stated:

* * * A child conceived through heterologous artificial insemination does not have a "natural father", as that term is commonly used. The anonymous donor of the sperm cannot be considered the "natural father," as he is no more responsible for the use made of his sperm than is the donor of blood or a kidney . . . With the use of frozen semen, the donor may even be dead at the time the semen is used. (66 Cal.Rptr. at 10, 437 P.2d at 498.)

At footnote 2 the court noted that there are two types of artificial insemination one is with the husband's semen, and the other with that of a third-party donor. "Only the latter raises legal problems of fatherhood and legitimacy." Sorenson, supra 66 Cal.Rptr. at 10, 437 P.2d at 498. The court stated that one who actively participated and consented to his wife's artificial insemination knew the legal responsibility of fatherhood and criminal responsibility for nonsupport. The court went on to state that

One who consents to the production of a child cannot create a temporary relation to be assumed and disclaimed at will, but the arrangement must be of such character as to impose an obligation of supporting those for whose existence he is directly responsible. As noted by the trial court, it is safe to assume that without defendant's active participation and consent, the child would not have been procreated.

(66 Cal.Rptr. at 11, 437 P.2d at 499) The court decided that the question of legitimacy of the child was properly left to the legislature, but noted that it was sufficient to find that the husband was the "lawful father" of the child to establish the responsibility...