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September 2013 - Senate Bill 115 Would Give Sperm Donors Standing to Petition for Paternity

by Meldie Moore

Vince Vaughan stars in a new comedy being released in November called The Delivery Man. Vaughan plays a character (David Wozniak) who anonymously donated sperm twenty years earlier. The sperm bank made a mistake, and his sperm was used to conceive 533 children. Thrown into a whirlwind of emotion and uncertainty, Wozniak decides to surreptitiously seek out his children. In the process, he establishes relationships with many of them. Wozniak discovers his true purpose in life is to be a father.

Would Wozniak be able to file a paternity action in California to establish parentage for any of these children? According to a recent decision by a Los Angeles court: no. The court found a sperm donor does not have standing to file a paternity action. See Patrick McGreevy, Jason Patric Custody Case Inspires Sperm-Donor-Rights Legislation, LA Times (July 6, 2013), http://articles.latimes.com/2013/jul/06/local/la-me-sperm-donor-20130707. Three laws came into play in the decision.

First, Family Code section 7613 provides:

The donor of semen to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination or in vitro of a woman other than the donor’s wife is treated in law as if he were not the natural father ... unless otherwise agreed to in writing ... prior to the conception.

Cal. Fam. Code § 7613(d) (Deering 2013). The law is intended to protect sperm donors from parental obligations, like child support, while protecting the women conceiving through sperm donations from donors’ later seeking to assert parental rights. Subdivision (a) establishes the husband of the woman receiving the donation with his consent is considered the natural father.

 

Second, Family Code section 7611 establishes the conditions under which a presumption of paternity occurs. A man is the presumed father, even if he is not the biological father, when a child is born during, or within 300 days of, a marriage or attempted marriage, is consensually named on the birth certificate as the father, has agreed or been ordered to support the child, or under subdivision (d), where he “received the child into his home and openly holds out the child as his natural child.” Cal. Fam. Code § 7611(d) (Deering 2013).

Third, section 7630 delineates who may bring a paternity action. Subdivision (a) gives this right specifically to a child, the child’s mother, a presumed father, an adoption agency, or an adoptive parent. Subdivision (b) of section 7630 states that “any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father-and-child relationship presumed under subdivision (d) [receiving and holding out provision] ... of [s]ection 7611.” Cal. Fam. Code § 7630(b) (Deering 2013) (parenthetical added).

A recent high-profile case brought to light the apparent conflict between the laws. Jason Patric, an actor notably remembered for The Lost Boys in 1987, filed a paternity action for his biological three-year-old son, Gus, in 2012. The family court held Patric did not have standing because of his status as a sperm donor. See Patrick McGreevy, Jason Patric Custody Case Inspires Sperm-Donor-Rights Legislation, LA Times (July 6, 2013), supra. Patric has appealed.

Patric and the mother of the child, Danielle Schreiber, were involved in a romantic relationship for many years, but never married. In 2009, Patric donated sperm for an in vitro fertilization (IVF) procedure for Danielle. She conceived and gave birth to a son in 2010, at which point the couple were allegedly broken up. The couple reconciled in 2011, and Patric established a relationship with the child. After splitting again, Patric sought parentage rights in 2012.

The parties have inconsistent stories about the circumstances and intent behind the conception of the child. Patric claims he and Danielle were a couple at the time he gave sperm because Danielle needed the IVF to conceive, and their intent was to co-parent. He says he has a “loving relationship” with his child: “I cared for him, I supported him, I raised him along with his mother.” Id. He claims what she is doing is “vindictive shutting out” of the child’s father. Sydney Lupkin, Jason Patric Bill Draws Criticsm, ABCNews (July 12, 2013), http://abcnews.go.com/Health/jason-patric-sperm-donor-bill-draws-criticism/story?id=19631782.

Danielle denies they intended to parent the child together. She says that during a time when they were separated, Patric agreed to donate his sperm only if she promised to keep his identity secret and agree that he would have no obligations toward the child. Patrick McGreevy, Jason Patric Custody Case Inspires Sperm-Donor-Rights Legislation, LA Times (July 6, 2013), supra. She admits the two reunited after her son was born and she “allowed Jason to have contact with my son while we were dating.” Katie Couric Show, July 15, 2013, available at http://www.katiecouric.com/videos/category/71513-jason-patric-on-his-public-custody-crusade-a-katie-exclusive-the-cast-of-turbo/. There are numerous photos of the two appearing together in public with Gus.

This case is not the first to address this issue. In Steven S. v. Deborah D., the court of appeal held section 7613(b) does not “make an exception for known sperm donors, who will be denied a paternity claim so long as the semen was provided to a licensed physician for insemination of an unmarried woman.” 127 Cal. App. 4th 319, 326 (2005). The fact that the couple had a prior romantic relationship was of no legal significance; the appellate court rejected the trial court’s finding that the mother should be estopped from denying the donor’s paternal rights. Id. at 328.

In sum, section 7613 provides a statutory basis for preclusion of parentage for sperm donors in artificial insemination situations, but does not include any provision precluding such men from standing to file a paternity action under section 7630. Section 7630(d) allows any interested party to bring an action at any time for the purpose of determining the existence or non-existence of the father-and-child relationship presumed under section 7611(d). It also does not include a provision precluding sperm donors from filing a paternity action under this section.

However, courts have held these two sections preclude a sperm donor who donates to a licensed physician for a woman who is not his wife, and there is no prior written agreement stating intent to co-parent, from thereafter filing a paternity action.

Senate Bill 115 (SB 115) was introduced in January by Senator Jerry Hill (D-San Mateo) to amend section 7630 to clarify this issue when the individual seeking parentage is both a presumed father and a sperm donor. SB 115 would allow any interested party, notwithstanding his treatment under section 7613 as a sperm donor, to have standing to bring an action at any time for the purpose of determining the existence or non-existence of a father-and-child relationship presumed on the “receiving” and “holding out” standard in section 7611(d). The sperm donor would still have to prove he met the standard of a presumed father by proving he received the child into his home and held the child out as his own under section 7611. If parentage is proven, the father may then seek custody rights.

Senator Hill says the result in the Patric case was not the intent of section 7613:

When the California Legislature amended the statutory language governing the treatment of donors of semen to a licensed physician for use in [assisted reproduction] . . . it did not intend to create the illogical scenario whereby individuals who are biological fathers, and known donors, but are not treated as natural fathers under one existing statute, are the sole class of individuals precluded from proving the existence of the presumed father and child relationship.

Cal. S. Judiciary Comm. SB 115, 1st Sess., at 4 (Cal. 2013). SB 115 is intended to affect only a small class of donors: known donors who did not intend to parent at birth, but thereafter formed a loving parent-child relationship.

 

Hill argues that denying a loving adult with a biological and emotional connection to a child from proving a parent-child relationship is contrary to the best interest of the child, which is the prevailing public policy in California. Id. However, “best interest” is not the standard in assisted reproductive technology (ART) law. In California ART cases, courts look to the intent of the parties, generally measured at the time of conception. Johnson v. Calvert, 5 Cal. 4th 84 (1993).

This bill would vest the responsibilities of parentage on donors successfully establishing the presumption, subjecting them to support and custody obligations. The child would also receive inheritance rights and other benefits such as access to health insurance. This is also consistent with California public policy to establish paternity for all children. See Cal. Fam. Code § 7570.

Opponents of the bill include Senator Tom Ammiano (D- San Francisco), the National Organization of Women (NOW), and at least one law professor. On July 6, 2013, the Los Angeles Times reported Senator Ammiano believes it is inappropriate for lawmakers to intervene in cases still in the court process. Such involvement “would be an open invitation to any other family-law litigants who lose their case at the trial level, but are rich enough to hire lobbyists and PR firms, to appeal their case directly to the Legislature and circumvent the judicial process.” Patrick McGreevy, Jason Patric Custody Case Inspires Sperm-Donor-Rights Legislation, LA Times (July 6, 2013), supra.

On July 15, 2013, Patricia Bellasalma of the California chapter of NOW wrote:

Moving from our current system where mutual agreement to co-parent is the starting place to a male dominant system is not the answer. It negates the ability of lesbian couples and single women to control the make-up of their families. ... The desire for the known sperm donor to have additional rights of custody and joint decision-making without the consent of the mother is nothing but dominance personified.

Why Is Katie Couric Promoting Jason Patric? CA-NOW (July 15, 2013, 9:00 AM), http://canoworg.typepad.com/canoworg/2013/07/why-is-katie-couric-promoting-jason-patric.html.

 

Other opponents argue that even if parentage is not established, it will cause unnecessary disruption by the ability to merely bring the suit. Judith Daar, a professor at UCI School of Medicine and Whittier Law School, wrote:

Since its adoption in 1975, Sec. 7613(b) has provided assurance to countless single and unmarried partnered women that the children they bear with the aid of donated sperm will not be the subject of a legal parentage dispute. Contemporaneous with his provision of donated sperm, a man is absolved of parental responsibilities while relinquishing his parental rights. It is essential for both (or all three) parties to adhere to these familial assurances in order for the practice of sperm donation to continue as a viable route to parenthood. SB 115 would inject tremendous uncertainty into the harmonious lives of donor-conceived families, permitting a man to rethink and reverse his promised relinquishment well into the offspring’s established childhood.

Judith Daar, Pending Sperm Donor Bill Threatens to Undo Family Ties, Daily Journal, p.5, July 10, 2013. Professor Daar points out that there already are two methods by which a sperm donor may parent a child conceived by means of his donation: (1) adoption with the mother’s consent, or (2) agree in writing at the time of conception that the donor will be accorded parental rights. She proposes Sen. Hill “consider a far bolder legislative act ... [and] define the term ‘sperm donor’ in the Family Code so that everybody is clear about their role from the outset.” Id.

 

Proponents of the senate bill include the Association of Certified Family Law Specialists, Equality California (an LGBT rights group), and the National Center for Lesbian Rights. John O’Connor, Executive Director of Equality California, does not agree with NOW that SB 115 negates the ability of women to control the make-up of their family because it is in the mother’s control to allow the donor to have contact with the child and the extent of that contact. He has said, SB 115 “will only apply in situations where the man who could be considered a sperm donor has lived with the child and has held himself out as the child’s father.” Sydney Lupkin, Jason Patric Bill Draws Criticism, ABCNews (July 12, 2013), supra. This type of relationship could only have occurred with permission from the other parent or parents. Id.

Proponents argue the bill is not a blanket permission for any sperm donor to establish paternity; rather, it allows standing for a sperm donor to assert paternity to the same extent of the law as any other man. Once standing is established, the man seeking paternity would still have to prove the elements of the existing law, currently available to “any interested party,” that he has allowed the child into his home and held out the child as his own. Proponents argue it is an absurd inconsistency that an unrelated male can assert standing, but a biological contributor such as a sperm donor cannot. They further state it is inherently unfair to a child who has developed a father-child relationship to allow one parent to exclude the other.

As legislators continue to debate SB 115, hopefully they will take into account the best interests of children who are conceived through ART, including sperm donor situations. If these children have, indeed, formed a parent-child relationship with the donor, then it may be best to ensure a way for that father to remain in that child’s life. Like any other custody battle, each case depends on its own unique circumstances.

At the same time, while it may be absurd and unfair to preclude biological fathers as the only class of men who cannot petition for parentage, this issue is premature for legislative action. Based on the absence of statutory language specifically precluding sperm donors from standing to later petition for parentage, the statutes should not be interpreted to include such a prohibition. Rules of statutory construction state that if the legislature did not include language, it should be deemed the legislature intentionally excluded that language. See California Fed. Savings & Loan Assoc. v. City of Los Angeles, 11 Cal. 4th 342, 349 (1995). While the court of appeal decides what is best for Patric and Schrieber, we can enjoy The Delivery Man’s fictional account of David Wozniak’s search for meaning with his 533 offspring.

Meldie Moore practices family law at Moore Law in Laguna Beach. She can be reached at meldie@moorelawoc.com.

 
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