Estate of Gordon

• Decision Date: 02 January 1986
• Citation: 131 Misc.2d 823,501 N.Y.S.2d 969
• Parties: ESTATE OF Bernard H. GORDON, Deceased. * Surrogate Court, Bronx County
• Court: New York Surrogate Court

Page 969

501 N.Y.S.2d 969

131 Misc.2d 823

ESTATE OF Bernard H. GORDON, Deceased. ^* Surrogate Court, Bronx County.

Jan. 2, 1986.

Fink, Weinberger, Fredman, Berman & Lowell, P.C., New York City, for petitioner.

Jacobson & Goldberg, Garden City, for respondents.

BETRAM R. GELFAND, Surrogate.

Accordingly, the court will address, ab initio, the framed question of whether children born in 1960 and 1962, respectively, during wedlock, by means of the artificial insemination of the wife by a third-party donor, with the consent of the husband, possess the status of issue of the husband.

New York, by statute, now explicitly provides under Domestic Relations Law section 73 that "[a]ny child born to a married woman by means of artificial insemination performed ... with the consent in writing of the woman and her husband, shall be deemed the legitimate, natural child of the husband and his wife for all purposes" [L.1974, c. 303, § 1]. Neither this statute nor any similar statutory provision existed at the time of the death of decedent or of the birth of either objectant. As is often the case, new technology must become firmly implanted before the legal issues raised by this technology become the subject of a statutory enactment.

At the threshold, it is appropriate to address, what, if anything, was the impact of the 1974 statute on the status of objectants. Ordinarily, statutes are to be construed as prospective in the absence of a clear expression of legislative intent to the contrary [Matter of Thomas v. Bethlehem Steel Corp., 63 N.Y.2d 150, 481 N.Y.S.2d 33, 470 N.E.2d 831; Matter of Mulligan v. Murphy, 14 N.Y.2d 223, 250 N.Y.S.2d 412, 199 N.E.2d 496; Matter of Ayman v. Teachers' Retirement Board, 9 N.Y.2d 119, 211 N.Y.S.2d 198, 172 N.E.2d 571; People v. Ennis, 94 A.D.2d 746, 462 N.Y.S.2d 499; New York State Water Resources Commission v. Liberman, 37 A.D.2d 484, 326 N.Y.S.2d 284]. Neither party has presented a basis from which the court can discern a legislative intent that Domestic Relations Law section 73 is to be applied retroactively.

There is much to suggest that the formal requirements of a statute of this nature were never intended to be applied retroactively. Logic is a presumed part of legislative intent. Clearly, it was not the intent of the legislature to wipe out the relationship of children created by artificial insemination to their mother's husband because a writing not required by law at the time of their birth was never executed. In this case, the parties conceded the consent of the husband of objectants' mother. Nevertheless, the record fails to reflect the writing which would constitute compliance with the basic requirement of the subsequently enacted statute. However, the absence of a statute on the subject at the time that objectants were conceived does not preclude them from becoming, at the time of their respective births, the children of their mother's husband. As is often the case, prior to a subject being codified, it is addressed and controlled by case law.

A clear basis for objectants' position can be discerned in the development of the common law prior to the enactment of the 1974 statute. Although the relevant decisions present a divergence of views, the weight of authority evinces the considered determination that a child conceived during a marriage by artificial insemination, with the husband's consent, was the...