§ 2.6 The Known Sperm Donor

• Library: Assisted Reproductive Technology: A Lawyer's Guide to Emerging Law and Science (ABA) (2018 Ed.)

§ 2.6 The known sperm donor

As discussed in this section, the early cases dealing with the parental status of sperm donors focused on the issue of whether the donor was known to the donee. Statutes such as the UPA and the ABA Model Act on ART, discussed supra, make such distinctions irrelevant when the donation is for assisted reproduction, but many jurisdictions have no such provision. Therefore, some courts may continue to rely on the known/anonymous donor distinction. The key to resolving disputes over the parental status of a known sperm donor would appear to be the intention of the parties when the woman seeks to be inseminated using the semen of a known acquaintance. However, this often raises a factual issue of the intent of the parties. Of course, in cases where the donor and donee know each other well, the issue may be resolved based on an acknowledgment of paternity,⁴³ a prior legal determination of parentage,⁴⁴ or the mootness of the case. The courts will continue to struggle with resolution of issues relating to intent in addressing the relationship between a known donor and the donee.

In an early, much-noted decision in Jhordan C. v. Mary K., the California Court of Appeal ruled that a known sperm donor was the legal father of the child when the parties did not comply with a state statute providing that a donor will not be treated as the father when the semen was provided to a physician.⁴⁵ The donor had been chosen by the mother and her female companion from several potential donors, and the parties had no legal advice at the time, did not execute a contract, and were unaware of the statute. The statute was based on the 1973 version of the UPA.⁴⁶ Because the parties did not comply with the statute, the donor was held to have the rights of a legal father to visit with the child.

Although the current version of the UPA eliminates the physician requirement (except where a state continues the requirement in its statute), there are several inferences to be drawn from the California decision in Jhor-dan C. The most obvious inference is that before entering into an insemination procedure using the sperm of a known donor, all parties should give consideration to the future role of the donor, if any, in the life of the child.⁴⁷ Certainly, their legal advisors should urge them to execute a contract spelling out their intent. The contract may or may not be enforceable under state law, but it can affect the conduct of the parties after the birth of a child and a court may give it some consideration in inferring intent. The other important lesson to be learned from this case is the need to comply with existing statutory provisions governing the exclusion of donors from paternity if that is what the parties intend.

When the recipient knows a donor, there is a possibility that the donor will be accorded some paternal rights, even if initially he promised not to seek any involvement in the life of the child. A Minnesota decision involved a three-way dispute between the birth mother of a child conceived by intra-uterine insemination, her former same-sex companion, and the man they had asked to provide sperm for the procedure. The donor initially signed an agreement that he would have no parental rights; later, another pre-birth agreement stated that he and his male companion would be entitled to have a significant relationship with a child conceived with his sperm.⁴⁸ After the birth of the child, the women petitioned to adopt the child, listing the father as "artificial insemination." The sperm donor then moved to vacate the adoption, which was granted. After the sperm donor brought a petition to adjudicate his paternity and after the two women had a falling-out and the birth mother left the state, the court was confronted with the conflicting claims of the parties. The birth mother was awarded sole physical custody on the condition that she return the child to the state. The two women and the sperm donor were granted joint legal custody, and the nongestating woman and male sperm donor each had visitation rights. The sperm donor was ordered to pay child support.⁴⁹

In Adoption of a Minor, the Massachusetts Supreme Judicial Court determined that a same-sex female married couple did not have to give notice of their joint petition for adoption under M.G.L. c. 210, § 2, to a known sperm donor, where a child was conceived during their marriage. M.G.L. c. 210, § 2 does not include the category "sperm donor" from those whose consent is required for adoption. The petitioners were the "lawful" parents of the child as contemplated by the statute because the child was born during their marriage through IVF with the consent of both of them. M.G.L. c. 46, § 4B confers legal parentage only on a consenting spouse to an IVF or intrauterine insemination procedure, and not on a third-party donor.⁵⁰

In a high-profile matter, actor Jason Patric appealed from a trial court decision denying him parental rights of his biological son, Gus, who was conceived through intrauterine insemination and carried to term by his girlfriend Danielle.⁵¹ After the child's birth, the parties resided together and portrayed him as the father for the first few years of the child's life. When their relationship broke down, Danielle sought to terminate Jason's relationship with the child. At the trial court level, Danielle prevailed in her argument that Jason was just a sperm donor under section 7613(b) and therefore had no parental rights.⁵² He appealed and after years of litigation, the Court of Appeal of California reversed the judgment and determined that a sperm donor is not precluded from establishing presumed parentage. The presumption is rebuttable and hinges on the facts of the particular case.

In L.F. v. Breit, the Supreme Court of Virginia held that an unmarried biological father ("Breit") can establish his parental rights over the objection of a mother who asserted he was "just a donor" or alternatively, that he was not a parent under Virginia's Assisted Conception Act because that law only applies to married couples.⁵³ The Court rejected the mother's arguments finding that despite Virginia's preference for marriage, a biological parent who shows an interest in parenting a child has a Constitutional right to establish his parental rights. Virginia's assisted conception statute provides that "[a] donor is not the parent of a child conceived through assisted conception, unless the...