Update On Paternity and Artificial Insemination

On behalf of The Marks Law Firm, L.L.C. posted in Paternity, Child Custody, and Artificial Reproductive Technology on Tuesday, May 20, 2014

In two earlier posts we discussed the legal complications surrounding paternal rights of a child of an unwed couple who conceived the child through artificial insemination, and we did so specifically in the context of actor Jason Patric in his legal battle to establish paternal rights to his child with Danielle Schreiber.

To briefly recap:  Jason Patric and Danielle Schreiber had a relationship for several years, during which the couple tried to conceive a child, without success.  Danielle very much wanted a child, and resorted to using in vitro fertilization with Patric as the sperm donor.  The couple did conceive and had a son, Gus.  At the outset the couple raised Gus together, though they never lived in the same household.  Eventually, they broke off their relationship permanently, and Danielle refused to let Patric have custodial time, prompting a paternity suit.  The California trial court had to confront two conflicting statutes – a paternity statute that designates the biological father the paternal parent of a child, and another statute that excludes sperm donors through in vitro fertilization from paternity.  Finding no explicit written agreement that stated Patric and Danielle intended for Patric to be the father of Gus with full parental rights, the trial court denied Patric’s petition to establish paternity and custody.

Patric appealed, and last week the California Court of Appeals ruled in his favor.  The appellate court did not make a sweeping ruling regarding the conflicting statutes, but rather created an avenue for non-anonymous sperm donors in relationships with the mother to prove paternity under the Uniform Parentage Act.  The appellate court did not disrupt the statute that denies paternity to any sperm donors when the child is conceived using artificial insemination.  Instead, it looked to a section of the Parentage Act that allows a father to establish paternity by showing “the presumed parent receives the child into his or her home and openly hold out the child as his or her natural child,” or what the court termed a “demonstrated familial relationship.”

The California appellate court remanded the case to the trial court to allow Patric to prove a “demonstrated familial relationship,” which will not be as easy as he hoped.  The facts are not decidedly in favor of Patric; for example, the parties never lived together as a family unit and Patric’s name is not on the birth certificate by choice.  On the other hand, the parties did have a custody schedule at the outset and Gus called Patric his “da da” in a video.  Also, the parties signed a consent form before the in vitro procedure that labels Patric the “intended” father.  While it will be a close case, it seems a fair bet that the court will award Patric some custodial rights.

The appellate court decision seems a less-than-satisfying compromise between two conflicting statutes, principally because it treats a child differently based purely on the manner of conception.  A man who has a one-night-stand with a woman that produces a child naturally will be liable for child support and able to pursue custodial rights, whereas a man like Patric, who has a relationship with the mother but must resort to assisted reproduction to have a child, must prove a “demonstrated familial relationship” to a court – one that may be rebutted by the mother.  In effect, the court has given the mother unequal power over the paternity of the child.  Indeed, if the mother terminates the relationship right after the birth of the child and prohibits visitation, she prevents the father from establishing the necessary familial relationship.

Given the appellate ruling, non-anonymous sperm donors can protect their paternity rights in two simple ways:  (1) enter a contract with the mother setting forth that both parties intend the donor to be the paternal father with custodial rights and responsibilities, and (2) place his name on the birth certificate.  These two acts will trump any of the statutory problems inherent in the currently conflicting laws on paternity and artificial insemination.

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

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