By MICHAEL VIRTANEN
Associated Press

ALBANY - An upstate New York man is the legal father and must pay child support for the baby his ex-wife conceived through artificial insemination with another man's sperm near the end of their marriage, an appeals court ruled Friday.

The Appellate Division of State Supreme Court unanimously upheld the decision last year by a Delaware County trial court, although the man had never signed a formal consent for his wife's insemination using an unknown donor, and their separation agreement said he was responsible only for supporting their two biologically shared children.

The justices cited "a presumption of consent" by husbands and "the compelling public policy of protecting children" conceived through artificial insemination.

They concluded that under New York common law, a husband would be required to rebut that presumption with "clear and convincing evidence," and the man identified in the ruling only as Peter WW failed to do that.

The couple were married in 1995 and had two children, after which he had a vasectomy. In 2004, Laura WW became pregnant through insemination at a doctor's office. A few months later, the couple separated.

The trial judge ruled that the man was the child's legal father and increased his child-support obligation to all three children, concluding that public policy voided the separation agreement.

The five appeals justices agreed, noting that the separation agreement left the third child "fatherless without a hearing or analysis of the child's rights and interests."

They also rejected the man's argument that he wasn't legally obligated since he had not signed the consent form specified under state Domestic Relations Law for authorizing his wife's insemination and claiming paternity.

"Prior to the enactment of the Domestic Relations Law, a Surrogate's Court held ‘that a child born of consensual AID (artificial insemination by donor) during a valid marriage is a legitimate child entitled to the rights and privileges of a naturally conceived child of the same marriage,' " Hon. Edward Spain wrote.

"This common-law rule is shared by numerous jurisdictions which have held, even in the absence of statutorily required written consent, that ‘the best interests of children and society are served by recognizing that parental responsibility may be imposed based on conduct evincing actual consent to the artificial-insemination procedure.' "

The justices then rejected Peter WW's arguments that he repeatedly told his wife he didn't think insemination was a good idea, and that she coerced him by threatening to leave if he didn't agree. They noted that he did sign a "frozen donor semen specimen agreement," faxed it to a California sperm bank, paid for it with a credit card and knew what his wife was doing.

"Significantly, he acknowledged in his testimony that had the couple stayed together, he would have accepted the child as his own," Spain wrote.

Jehed Diamond, law guardian for the child, had argued that paternity required a finding that the father consented to bringing her into the world. "As many courts have said, you can't make that kind of relationship at will, that you consent to the production of the child, and then create a temporary relationship that can be assumed or disclaimed at will," she said.

Calls to Andrew Van Buren, the ex-husband's lawyer, were not immediately returned.