242 N.Y.S.2d 406 (Misc. 1963)
The plaintiff husband, Stanley Gursky, and the defendant wife, Annette Gursky, entered into a marriage that the plaintiff alleged produced no issue.1 The plaintiff brought an action asserting three causes of action, including one for annulment and others for separation based on abandonment and cruel and inhuman treatment. The defendant interposed an answer denying the claims and counterclaimed for separation.2
Upon the dismissal of the plaintiff's annulment cause of action for failure of proof at trial, the defendant moved for leave to amend her answer to include a counterclaim for annulment, and the motion was granted without objection.3 The believable testimony, medical proof, and other evidence, including formal admissions by the plaintiff, established that the marriage had not been consummated due to the plaintiff's condition.4 The parties had sought medical advice regarding the plaintiff's infirmities and the possibility of artificially inseminating the defendant wife.5
The parties agreed that the defendant would undergo artificial insemination using the semen of a third-party donor.6 Both the plaintiff and defendant signed a consent form for the procedure, and the plaintiff additionally signed a contract waiving liability and agreeing to pay all related medical expenses; these documents were received in evidence as exhibits.7 As a result of the artificial insemination, the child Minday Frances Gursky was born on September 14, 1961, with the birth certificate listing the defendant as mother and the plaintiff as father.8 Prior to the child's birth the plaintiff provided the defendant with eighty dollars per week for household expenses, and this amount increased to ninety dollars per week after the birth.9
At trial the court also considered an application by the defendant for additional counsel fees, on which decision was reserved, and the services of a special guardian appointed to protect the interests of the child.10
Whether a child conceived by means of artificial insemination of a married woman through the use, with the husband’s consent, of semen contributed by a donor other than the husband is legitimate?11
The concept which historically is deeply imbedded in the law is that a child who is begotten through a father who is not the mother’s husband is deemed to be illegitimate.12 This view has been carried over into statutory law.13 The term a child born out of wedlock is deemed to be synonymous with and must be construed as meaning an illegitimate child under General Construction Law section 59 and former Domestic Relations Law section 119.14 Reason and logic impel the conclusion that the phrase “Out of lawful matrimony” refers not solely to the child of an unmarried woman. It also refers to the child of a married woman whose natural father was not married to its mother.15
No. The child Minday Frances Gursky is not the legitimate issue of the plaintiff husband.16 Applying the rule to these specific facts, the child was conceived by means of heterologous artificial insemination with a third-party donor and therefore is illegitimate despite the husband's consent and the listing on the birth certificate.17
The child is not the legitimate issue of the husband.18
Whether the husband is obligated to furnish support for a child born as a result of such heterologous artificial insemination?19
A promise will be implied where the agreement is instinct with obligation and the implication is supported by the circumstances.20 An agreement may result as a legal inference from the facts and circumstances of the case although not formally stated in words.21 An estoppel rests upon the word or deed of one party upon which another rightfully relies and so relying changes his position to his injury.22 A party may not even innocently mislead another and then claim the benefit of his deception.23
Yes. The husband is obligated to furnish support for the child.24 The plaintiff signed the consent form requesting the physician to conduct the artificial insemination for the express purpose of providing a child for the mutual happiness of the parties. He also signed the contract agreeing to pay all medical expenses.25 There is nothing in the record to indicate that the wife would have undergone artificial insemination in the absence of the husband's consent. It is reasonable to presume that she was induced so to act and thus changed her position to her detriment in reliance upon the husband's expressed wishes.26
The plaintiff provided the defendant with eighty dollars per week for household expenses prior to the birth and ninety dollars per week subsequent to the birth.27 These facts establish both an implied contract to support the resulting child and grounds for equitable estoppel that cast upon the husband the primary duty of support as between husband and wife.28
The husband is liable for the support of the child whether on the basis of an implied contract to support or by reason of application of the doctrine of equitable estoppel.29
Whether the wife is entitled to an award of additional counsel fees for services rendered after the initial award in the action?30
In matrimonial actions the court may award counsel fees at any stage regardless of the period for which legal services have been rendered. This is permitted when the original award did not contemplate the additional legal services that were required to be rendered on behalf of the defendant to pursue her action and support her defense.31
Yes. The wife is entitled to an award of additional counsel fees.32 The defendant made an application at the start of the trial for additional counsel fees upon which the court reserved decision.33 The plaintiff opposed the application by relying on the rule that no award could be made for past services in matrimonial actions.34
In view of the issues raised by the plaintiff husband subsequent to the original award of counsel fees, the defendant is entitled to additional counsel fees. The original award did not contemplate the additional legal services that were required to be rendered on behalf of the defendant to pursue her action and support her defense.35 Counsel fee is therefore awarded in the sum of three hundred dollars, and the special guardian is awarded the sum of two hundred seventy-five dollars.36
The wife is entitled to additional counsel fees in the amount of three hundred dollars.37