Testa, J.c.c., Temporarily Assigned.
[152 NJSuper Page 160] 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 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 (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 ...