Should a man who donates his sperm to a woman so that she can have a child through medically assisted reproduction later be able to claim parental rights to any resulting child? Would your answer change if the man and woman had an on-again off-again romantic relationship in which they tried for years to conceive “the old-fashion way” before turning to assisted reproductive technologies (ART)? How about if the couple briefly reconciled after the child was born during which time the man grew increasingly attached to his biological son? These are the questions now wending their way through the California judicial and legislative systems.
In case these facts aren’t intriguing enough, the controversy involves a third-generation Hollywood actor, Jason Patric (son of playwright/actor Jason Miller, grandson of comedian Jackie Gleason) and his long-time girlfriend Danielle Schreiber. If tabloids be believed, the pair dated for a decade before splitting in 2009. Sympathetic to his ex’s desire to become a mother, Patric allegedly agreed to donate his sperm on the condition that the provenance of her child remain a secret. Schreiber adhered to that promise after her son was born in late 2009, but sightings of the couple with the young boy two years later started the rumor mill churning. Patric’s biologic parenthood was confirmed in 2012 when he petitioned a Los Angeles family court for parental rights.
The California Family Code is replete with language addressing the rights (and lack thereof) of prospective fathers to seek adjudication of their legal paternity under various circumstances. Two sections are particularly apt to the Patric matter. Family Code Section 7613(b) provides that “the donor of semen provided to a licensed physician…for use in artificial insemination or in vitro fertilization of a woman other than the donor’s wife is treated in law as if he were not the natural father 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.” Assuming the absence of a written agreement, it would appear that Patric has no claim so long as the law regards him as a donor under the statute. Importantly and regrettably, the statute does not define the term “donor.”
But at least one other provision in the Family Code arguably leaves open a judiciable claim for paternity by a sperm donor. Section 7611(d) provides that a man is presumed to be the natural father of a child if he “receives the child into his home and openly holds out the child as his natural child.” This catch-all method for establishing paternity does not address, preempt or defer to the Section 7613(b) governing the treatment of sperm donors. Is a sperm donor precluded from arguing facts to establish paternity based on a post-conception relationship, or can he disavow his prior status as a mere donor if he has a change of heart after the child’s birth?
The problem for Patric is that California courts have construed the sperm donor law to be a decisive barrier to parental rights, preempting application of other statutory schemes that adjudicate parentage. With defeat looming in the judicial branch, Patric’s legal team turned to the Legislature where it found a sympathetic lawmaker in Sen. Jerry Hill (D-San Mateo). Earlier this year, Sen. Hill introduced SB 115, a bill that would amend the state’s family code to permit any man – including a sperm donor – to petition for paternity under the “receiving and holding out” standard. From my perch, this opportunity for post-birth assertions of parenthood would tear asunder far more families than it would unite. Unlimited in time and scope, the bill would jeopardize the reliance countless donor-conceived families have placed in the statutory assurance that a donor will not be considered a legal father.
The Patric case and its legislative sequel demonstrate the current mismatch between existing laws on sperm donation – many written in the 1970s – and the contemporary clinical realities of ART. The original 1973 Uniform Parentage Act provision relieving sperm donors of parental responsibility contemplated a single scenario – in which the donor was anonymous and had no interaction with the woman or the resulting child. Today’s donors can be anonymous, but increasingly occupy at least two others roles – generous acquaintance and intimate partner. These latter so-called “known donors” are susceptible to a change of heart about parenting because they often remain in the family circle after their gametes are turned over. While they may have intended a pure gift and no formal parenting role at one point, seeing and interacting with a child can alter that perspective down the road.
Change of heart is not unknown in the ART world. We have endured many such scenarios in the surrogacy realm. In the main, the law elevates intent over gestation, holding the parties to their original promises expressed in contemplation of assisted conception. For third party reproduction to continue to flourish, contemporaneous expression of intent must remain a preeminent value going forward. A law that permits sperm donors to revisit intent post-birth could easily spill over into egg donation and gestational surrogacy, potentially dismantling alliances that have forged thousands of ART families worldwide.
The cure for the sentimental sperm donor is not a second bite at the apple. Rather, the law must do a better job at defining who is (and who is not) a true gamete donor at the time of donation so that the man’s status can take hold and persist. California is not alone in failing to properly define the term “donor” as used in ART law. Most state gamete donor laws leave the definition open for debate. Surely we could put our collective heads together to pen a definition that gives notice to a man who surrenders his sperm – be he stranger, good Samaritan or conflicted paramour – where he legally stands once a child is born.
[An expanded version of this post will appear in the Los Angeles Daily Journal on July 10, 2013]