Thursday, May 15, 2014
Appeals Court Says Sperm Donor May Have Parental Rights
Panel Revives Actor Jason Patric’s Claim That Child Conceived Through IVF Is His Son
By a MetNews Staff Writer
A statute that denies automatic parental status to a sperm donor unless he is the mother’s spouse or has a written agreement with her is not an absolute bar to a ruling that the donor is the child’s legal father, the Court of Appeal for this district ruled yesterday.
Div. Four overturned a Los Angeles Superior Court judge’s dismissal of actor Jason Patric’s suit seeking to be adjudged the father of Gus, now four years of age, who was conceived through in vitro fertilization. The boy’s mother, Danielle Schreiber, says the actor was a mere sperm donor, while Patric is seeking the status of a presumed father under Family Code §7611.
The trial court based its ruling on §7613(b), which says that, when the parties are unmarried, a donor “is treated in law as if he were not the natural parent of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.”
Justice Thomas Willhite, writing for the Court of Appeal, acknowledged that a prior Court of Appeal case, Steven S. v. Deborah D. (2005) 127 Cal.App.4th 319, the court rejected the donor’s argument that because he was in an intimate relationship with the mother, treating §7613 as an absolute bar was contrary to legislative intent, despite the literal language of the statute.
The Steven S. court wrote:
“There can be no paternity claim from a sperm donor who is not married to the woman who becomes pregnant with the donated semen, so long as it was provided to a licensed physician.”
But that decision did not involve §7611, Willhite wrote.
“We should not have been so categorical, because we were not faced with a donor seeking to establish paternity under section 7611, the presumed parentage statute, and therefore had no occasion to consider whether section 7613(b) precludes any such attempt,” the justice wrote. “We do so now, and conclude that section 7613(b) does not preclude a donor from establishing that he is a presumed father under section 7611.”
Section 7611 sets out several rebuttable presumptions under which a man may qualify for parental status, regardless of whether he is the child’s biological father. One of the provisions permits a man to be presumed as the father of a child whom he received into his home and held out as his own.
Patric and Schreiber, who had dated off and on for about 10 years, split for good in June 2012, shortly before the actor filed his parentage action. He claims that he, Schreiber, and Gus lived as a family and that she actively encouraged his relationship with the boy.
The proper interpretation of the two statutes, Willhite said, is that a sperm donation will not establish paternity, absent marriage or a written agreement, but the donor may still establish paternity under §7611, if he can establish that the presumption applies and the mother fails to rebut it.
That interpretation, he wrote, “allow[s] both statutes to retain effectiveness and promote[s] the purpose of each” and avoids unintended consequences.
“For example, suppose an unmarried couple that had tried unsuccessfully to conceive a child naturally, finally were able to conceive through assisted reproduction,” the jurist wrote. “They then got married, after conception but before the birth of the child, and raised the child together. After several years, they divorced and the mother sought child support because she could not afford to care for the child on her own. Under Danielle’s interpretation of section 7613(b), the mother’s ex-husband would have no obligation to support the child because he was a sperm donor under section 7613(b) and could not be found to be the child’s presumed father under section 7611, despite having been married to the mother at the time of the child’s birth and having raised the child as his own. The Legislature could not have intended this result.”
The case is Jason P. v. Danielle S., 14 S.O.S. 2406.
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