NEW JERSEY
In re Parentage of Robinson
Family Photo (ACLU of New Jersey)
Under a New Jersey statute (N.J.S.A. 9:17-44), the husband of woman who is artificially inseminated with donor sperm is deemed the "natural father" of the resulting child. The statute literally applied only to "husbands" whose "wives" were artificially inseminated.
The question in this case was whether the statute applied to Jeanne LoCicero, who was the female partner of a woman, Kimberley Robinson, who gave birth to a child as a result of insemination with donor sperm. The court held that the statute applied to LoCicero despite its textual limitation to "husbands" and "wives."
LoCicero and Robinson had demonstrated at least a spouse-like commitment. While living in New York, they had first registered as domestic partners under a New York City ordinance and then formalized a marriage in Ontario. Shortly after the marriage, they jointly purchased a home in New Jersey and moved there.
Although a New Jersey domestic partnership statute arguably provided for recognition of the New York City domestic partnership (N.J.S.A. 26:8A-6c), a legislative committee had said that the New Jersey's statute would not "create[]...individual partners' rights and responsbilities toward children...." Even if recognized by New Jersey, then, the New York City domestic partnership did not, in the court's view, extend the paternity statute to domestic partners.
Nor did the court recognize LeCicero and Robinson's Canadian marriage. The court noted that the state attorney general had opined (Statement of Mar. 10, 2004) that New Jersey did not permit the formalization of same-sex marriages in-state. The court cited Bucca v. State, 43 N.J. Super. 315, 128 A.2d 506 (Ch. Div. 1957), for the proposition that New Jersey would not recognize an out-of-state marriage, though valid where formalized, if it would have been void under New Jersey law. Finally, the court cited Hennefeld v. Township of Montclair for the proposition that New Jersey law did not allow for the recognition of Canadian same-sex marriages. The court did not consider the possibility that New York law might govern the validity of the Canadian marriage because the couple were apparently New York residents at the time of the wedding.
Instead, the court cited the fact of the couple's Canadian wedding as a demonstration of the depth of their mutual commitment, and called it "the essence of a marriage." Finding the couple functionally equivalent to a legally married husband and wife, the court emphasized the strong public policy of New Jersey in favor of promoting the best interests of children. On this basis, the court construed the paternity statute as applicable to LeCicero.
Conflicts experts: The court's treatment of the Canadian marriage resembles Brainerd Currie's "datum" approach to incidental questions. Brainerd Currie, Selected Essays on the Conflict of Laws 69-71 (1963).
Documents
- Decision (abbreviated letter ruling) (May 23, 2005) (N.J. Ch.) (reported at 890 A.2d 1036 <WL> <Lex>)
Papers
- Pet. Br. in Sup. of Complaint (esp. Intro n.1 at p. 2; Arg. II.A. n.4 at p. 13)
- Pet. Supp. Br. (esp. Arg. I.C. & n.4 at pp. 5-8)
More Information
- ACLU of New Jersey: Robinson