Sperm Donors May Have Parentage Rights

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Imagine you and your girlfriend strongly desire to have children.  You are unable to do so naturally, so you jointly decide to seek medical assistance.  You donate sperm and your girlfriend is inseminated; 9 months later, a baby!  You and your girlfriend jointly raise this child until the unfortunate ending of your relationship.  You seek to have a custody schedule implemented, when your girlfriend announces you have no legal rights because you donated sperm through a sperm bank.  What?  Can this be true? Up until last week, yes!

The Law

The law has changed for unmarried people who seek to have children through in vitro fertilization or similar procedures conducted by a licensed physician and surgeon or to a licensed sperm bank.  Until a few days ago, the law in California provided that sperm donations through a licensed physician and surgeon or to a licensed sperm bank to someone other than the spouse of the donor, absent a written agreement to the contrary, did not allow the donor to establish parental rights over the child – even if that donor raised that child along with the other parent.    This law has not changed with regard to anonymous sperm donations, but it has changed for those people who know each other, jointly undertake the donation process and then participate in the child’s life.

The Hollywood Twist

Thanks to the newsworthy custody battle between Jason Patric and Danielle Schreiber concerning their son, Gus, the law has changed.  It has now been held by a California appellate court that a sperm donor, who donates sperm through a licensed physician and surgeon or to a licensed sperm bank, to anyone who is not their spouse, may rebut the statute which provides for no parental rights (or obligations), if that person can establish he is a presumed parent under the law.   This means the donor can prove to a court that he has received the child into his or her home and openly holds out the child as his natural child.  Being able to demonstrate this creates the exception to the sperm donor rule.

Dad Must Prove He is a Presumed Parent – Biology is Not Enough

Now, after his loss in the trial court, the court of appeal’s ruling allows Jason Patric to start at “GO” in his bid to establish his parental rights over his biological son, Gus. The law essentially gives sperm donors the right to present evidence to the court that they should not be treated like an anonymous sperm donor, by showing they in fact are a presumed parent who received the child into his home and openly held  out the child as his natural child.

The Future

This ruling is a big change in the law, which actually seems like a logical conclusion.  Though the case involved the donation of sperm, there is little doubt this new legal interpretation would also apply to egg donations.  

The end result is that women who utilized an anonymous sperm or egg donation remain protected by the existing law, which will prevent that anonymous donor from claiming parental rights. But now, thanks to the court of appeal, parents who make a sperm or egg donation to assist a partner in family planning will not be automatically denied the right to establish parental rights.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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