Law of Wills, 2016A

6.4.1 Consenting Husband is the Legal Father
In the majority of jurisdictions, if the husband does not consent in writing to the artificial
insemination of his wife, he is not responsible for providing financial support to the resulting child.
Hence, it follows that the child would not be eligible to inherit from the non-consenting husband. A
few states require that the husband’s consent to the artificial insemination be in writing.
Nonetheless, some courts have stated that consent is not limited to written consent. Therefore, a
man may become responsible for the artificially conceived child as a result of his actions. Some state
statutes require that the husband consent to the artificial insemination without specifically stating
that the consent has to be in writing.
6.4.1.1 Written Consent
When evaluating the consent of the woman’s husband for purposes of establishing the
father-child relationship, the first thing the courts attempt to determine is whether or not the
husband gave written consent. Resolving that inquiry requires the court to answer two questions: (1)
whether there was a writing and (2) whether the writing satisfies the statutory mandate. This is not a
straight forward analysis because most of the state statutes do not identify the type of document that
is necessary to satisfy the written consent requirement. In addition, the statutes do not specify the
necessary content of the writing and the time at which the writing must be signed. The court in the
following case gave the written consent requirement a flexible meaning and used the doctrine of
substantial compliance to recognize the woman’s husband as the legal father of the artificially
conceived child.
Lane v. Lane, 912 P.2d. 290 (N.M. 1996)
HARTZ, J.
Twentieth-century science has complicated the law of paternity. Advances in biology make it
possible both to determine and to create biological parents in ways not contemplated a few decades
ago. On the one hand, laboratory technicians can now rebut the presumption that the husband of
the mother at the time of conception is the biological father. On the other, physicians can now
enable infertile couples to have children who do not share both parents' genes. Legislatures have
been attempting to design paternity statutes that properly balance the important interests at stake.
This appeal requires us to interpret one such attempt, the Uniform Parentage Act (the Uniform Act),
approved by the National Conference of Commissioners on Uniform State Laws in 1973 and
enacted, with some modifications, in New Mexico in 1986, NMSA 1978, §§ 40-11-1 to -23
(Repl.Pamp.1994) (the New Mexico Act).
The dispute before us arises out of the dissolution of the marriage of Arlene Daniels Lane (Wife)
and Terrence M. Lane (Husband). Wife appeals the district court's order granting Husband joint
custody of Colleen Lane, who was conceived during the marriage by artificial insemination from an
anonymous donor. Husband is neither the biological nor adoptive parent of Colleen. The issue on
appeal is whether Husband should nevertheless be treated as Colleen's “natural” father. We hold
that he acquired that status through substantial compliance with the New Mexico Act. We therefore
affirm the judgment of the district court.
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