Does ‘Sperm Donor’ Mean ‘Dad’?

He is a movie star who shot to fame on a motorcycle in “The Lost Boys.” She is a California massage therapist from a prominent East Coast family. With his sperm, her eggs and the wonder of in vitro fertilization, they produced a child, Gus.

From there, the tale gets very, very messy; a story that serves as a cautionary tale for any man considering donating sperm to a friend and any woman considering accepting it.

In February 2013, the actor lost a court battle to gain visitation rights with Gus under a California law that grants the mother full custody in the absence of a written agreement establishing parental rights before conception. But the fight for custody did not end there.

In a statement to ABC News prior to the decision in May, Schreiber claimed Mr. Patric offered to donate sperm after the two broke up ‘under the express condition’ that it be kept secret and ‘that he would not be a father to or have any obligations, rights or responsibilities for my child.’

Jason Patric and Danielle Schreiber decided in 2009 (at a time when they were not romantically involved but still friendly) to pursue artificial insemination.

The baby eventually helped rekindle a romance between Ms. Schreiber and Mr. Patric, although they never formally moved in together. For the next two years, Mr. Patric said that he played a parental role (“I took him to get circumcised when he was 8 days old”) and that Gus referred to him as “Dada” in videos and messages.

Then, in June 2012, the couple broke up for good. Shortly thereafter, Mr. Patric filed a paternity suit for shared custody. According to both sides, there was legal mediation, during which time Gus continued to see Mr. Patric.

But then, according to court filings, Ms. Schreiber abruptly started to withhold visits. Ms. Schreiber’s lawyer, Fred Heather, said his client saw Mr. Patric as increasingly threatening and hostile. “She was fearful for herself as well as for Gus,” Mr. Heather said — allegations that Ms. Schreiber made in her court case. (She filed for a restraining order, which was granted.) Mr. Patric vigorously disputed that claim, maintaining that Ms. Schreiber’s shift was a legal maneuver, a result of stumbling across a loophole in state sperm-donor laws.

“The resonance here is enormous because of the increasing number of families being formed today outside of traditional marriage,” said Naomi R. Cahn, a family law professor at George Washington University and the author of “Test Tube Families.” “Single heterosexual women, lesbian couples, men who donate sperm expecting to be part of a child’s life — they had better be paying attention.”

California, like many states, has conflicting statutes. Family Code Section 7611(d) provides that any man can establish parentage if he “receives the child into his home and openly holds the child out as his natural child.” But another statute holds that a man who provides his sperm to a doctor for the purpose of inseminating an unmarried friend is “treated as if he were not the natural father” — unless there is a specific written agreement ahead of conception. This is known as the sperm donor rule. Mr. Patric and Ms. Schreiber had no such agreement.

The sperm donor rule was implemented, in part, so that if a husband was sterile and a couple chose to use donated sperm, there was no risk that the sperm donor could later assert that he was the father of the child, nor was there a risk that the mother of the child could sue the sperm donor for child support. These rules, codified in the Uniform Parentage Act (UPA) and implemented in the majority of states, including California in 1975, gave the first recognition to the fact that children were being created with medical assistance. In an effort to address the situation in which a woman needed donor sperm in order to conceive, the UPA created a class of biological fathers who would never be legal ones.

Here, the trial judge ruled against Mr. Patric Mr. Patric appealed and the appellate court said the trial judge was off base and sent it back for another hearing.

The second time was a charm for Mr. Patric. The trial judge issued a sealed 45-page opinion … concluding Mr. Patric is the legal father.

It’s a groundbreaking decision; it gives sperm donors a chance to fight for custody in court.  It is also a still developing area of law with many questions left unanswered.  That is why you need an experienced family law attorney by your side to navigate these still very muddy waters.

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding parentage and sperm donation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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