Artificial Insemination and Paternity Rights (Part II)

On behalf of The Marks Law Firm, L.L.C. posted in Artificial Reproductive Technology, Paternity, Child Support on Wednesday, May 7, 2014

In our previous post, we recounted the legal saga of Jason Patric in his attempt to secure paternity rights for his now four-year-old son.  He was in a relationship with the mother of his son at the time they decided to use a surrogate to have a child, and he served as the non-anonymous sperm donor.

Patric and the mother of his child broke up and he had to file a paternity suit to attempt to see his son.  He ended up losing his case at trial (it is now on appeal) because of a conflict between traditional paternity statutes that give parental rights to natural fathers and new statutes denying rights to sperm donors.

In this post, we look at how the Patric case would unfold in Missouri and Illinois, and how the law needs to change to clarify this conflict in statutes.

In Missouri, a man is considered the “natural” father of a child if he is the acknowledged father on the birth certificate or he and the mother have otherwise held the child out to be their own, or if a DNA test establishes that the man is in fact the biological father of the child.  Hence, under Missouri’s paternity statute, any sperm donor, anonymous or otherwise, would be considered the natural father of the child.

However, Missouri has enacted a statute dealing with artificial insemination.  In that provision, a sperm donor not the husband of a married woman has no legal claims to the child and is not considered the natural father.  So, as currently written, Missouri law only exempts paternal rights for sperm donors utilized by married couples.  One could argue the legislature intended to shield all sperm bank donors from paternal obligation, but at least one Missouri case suggests that a donor would have standing to pursue paternity rights.  Hence, in Missouri, Jason Patric would have had less difficulty establishing paternity.  On the other hand, Missouri leaves potential sperm donors subject to liability for support, if only when not anonymous.

Illinois has the same provisions of paternity as Missouri, the same statutory gap regarding unmarried couples that use artificial insemination.  However, the Illinois Supreme Court, in a case with facts similar to the Patric situation, ruled in 2003 that unless the donor father consents in writing to be the natural father of the child, the donor father would have no legal rights.  The Court refused to address whether the statute would apply to unmarried couples, urging the legislature to fill that gap – which it has not yet done.  So, under Illinois law, it remains unclear how the Patric case would be resolved – it suffers from the same problems as the California law Patric now challenges.

New York has held in at least one court case that if an unmarried couple had a child through intercourse and the law imposed the burden of paternity on that father, the law must do the same for one who through the same intentionality does so through artificial insemination.

Surprisingly, Missouri, Illinois and many other states have known of this gray area in the law and not taken legislative measures to fix this loophole.  The logic of the New York case should hold and be codified by statute – unmarried couples that use artificial insemination with the intent to make a child together (where the male partner is the non-anonymous sperm donor) should be treated the same as a child conceived through intercourse.  Further, the legislatures should clarify an anonymous sperm donor has no status as legal parent unless he agrees to do so in writing at the time of conception.  Alternatively, legislatures could choose to require written consent to parentage in all cases.  However, choosing this option will potentially leave some children unsupported and will continue the incongruity in the parentage laws between children conceived naturally versus those conceived artificially.

This area of the law needs more attention from lawmakers and courts, as cases like those of Jason Patric will only grow in number.  Fathers who intend to be parents, whether through natural or artificial means, should have the right to claim paternity, and the mothers should have the right to claim support.  We should not leave loopholes that could be used strategically against the other parent, and we should not treat children conceived artificially any different than those conceived naturally.  Until that point, however, we will see more heart-wrenching stories of fathers in search of rights.

If you have questions about paternity rights and artificial insemination, contact our St. Louis family law attorneys – we can help.