Legally Blonde Blurb:
“Legally Blonde” is a classic fish-out-of-water comedy following Elle Woods, played by Reese Witherspoon, an irrepressible sorority girl who enrolls at Harvard Law School and overturns everyone’s expectations. So what does that have to do with sperm donation?
In one early classroom scene, Professor Stromwell asks the class to consider the case of a sperm donor seeking parental rights.
Elle Woods’ ex-boyfriend, Warner Huntington, responds: “According to Swinney vs. Neubert; Swinney, who was also a private sperm donor, was allowed visitation rights as long as he came to terms with the hours set forth by the parents. So, if we’re sticking to past precedent, I mean, Mr. Latimer wasn’t stalking. He was clearly within his rights to ask for visitation.”
Elle challenges this analysis responding: “Well, unless the defendant attempted to contact every single one-night stand to determine if a child resulted in those unions, he has no parental claim over this child whatsoever. Why now? Why this sperm?”
Although not enunciated by Elle, she may be taking the position that if a donor contractually waived all parental rights, he would not be entitled to visitation rights.
Legal Analysis:
While Elle gained the professor’s praise with this exchange, we are not so convinced by her reasoning. Generally, whether a donor seeks to establish paternity or visitation on all their donations or just a select number should not determine the merit of their claim. Swinney v. Newbert is a fictional case, and not likely to be a first year law school question, but there are real life corollaries to this exchange, namely, whether the intent at the time of conception controls forever, or if conduct after the donation may subsequently override a valid gamete donation agreement.
Before states began developing laws that addressed the rights of gamete donors, the courts had to tackle these issues first. In general, all 50 United States have a presumption that if a child is born in a heterosexual marriage, the husband and wife and the parents. When there was not a marriage, unwed fathers have been found to have due process rights to seek parentage when they demonstrate a full commitment to parenting responsibilities. (See Lehr. v. Robertson, 463 US 248 (1983)).
The first reported case to address a known sperm donor’s rights was the 1977 New Jersey case of C.M. v. C.C., the mother used an at-home insemination kit and there was no written contract between the parties. The donor sought to establish parental rights. The court found that because it was in the child’s best interest to have two parents if possible; there was no one else to assume responsibilities of fatherhood except for him; and he actively participated in insemination, he should be considered the legal parent and was granted visitation rights despite the mother’s opposition. This is an unhappy result for many, but fortunately some states have developed case law or statutes that protect the parties from a donor seeking parental rights or a parent seeking child support against a donor.
Jason P. v. Danielle S. is a recent case that involves a sperm donor who sought to establish parental rights. It reminds us of the fictional Sweeny v. Niebert in Legally Blonde, because it examines whether a sperm donor can have a right to parent a child when he initially agreed to be only a donor.
Under California law, a sperm donor who donates sperm to a physician or a licensed fertility clinic for assisted reproduction is treated as not the natural parent of the child conceived “unless otherwise agreed to in writing signed by the donor and the woman prior to the conception.” (Family Code 7613(b)).
However, California Family Code Section 7611(d) defines a person to be presumed to be the natural parent if “the presumed parent receives the child into their home and openly holds out the child as their natural child.”
In Jason P., the California Court of Appeal decided whether Jason P. qualified as a sperm donor defined in Cal. Family Code Section 7613(b) and was unable to establish presumed parenthood using Section 7611(d). The answer is surprising.
Jason and Danielle were an on-and-off couple (Jason actually being Lost Boys and Speed 2 actor Jason Patric), and Jason agreed in writing to donate sperm to Danielle. Jason deposited sperm at a fertility clinic and Danielle used his sperm for IVF. Although they filled out consent forms at the IVF clinic prior to conception, which listed Jason as an intended parent, the clinic’s consent documents were not enough to satisfy the “in writing” requirement in Section 7613(b) where the donor and mother agree the donor will be treated as a natural parent. The trial court found that this was the end of his claim to parentage.
However, the Court of Appeal interpreted Section 7613(b) as only precluding “a sperm donor from establishing paternity based on biological connection to the child” (226 Cal.App.4th 167 (Cal. Ct. App. 2014)). Jason argued his actions after the birth of the child establish parentage instead of only using biological connection and could establish paternity under Section 7611.
The appeals court agreed that Jason could in fact show he was a presumed father to the child, not because of his biological connection but because of facts which showed his commitment to the wellbeing of the child. Danielle and the child would frequently visit and stay in Jason’s home in New York. He presented evidence of his relationship with the child where the child refers to him as “Dada.” In the end, this was enough to send the case back to the trial court where it did find that Jason was a presumed father, and entitled to parental rights. A long custody battle followed and a second appeals court decision in 2017 found that the trial court correctly found parentage based on his actions to accept his role as a parent, not his genetic contribution.
Comparison and Takeaways:
In the fictional Sweeney v. Newbert sperm donation case, Elle asks “Why now? Why this sperm?” as to why the donor could assert parental rights to one donation. The answer seems to be found in the real Jason P case. In an on-and-off again relationship, a sperm donor may be able to establish visitation rights or parental rights depending on the conduct of the parties after the birth, even if the parties have a sperm donation agreement and follow the law. It is still an open question whether a provision forever revoking all parental rights in a written sperm donation agreement can bar the donor from claiming parental rights, but we advise parties to known donation agreements to always refrain from referring to a donor as a parent or the child to refer to the donor as a “dada” “mama,” or for the donor to take the child into his/her home as their natural child.
When you enter into a gamete donation agreement, please consider having proper representation. We at Tsong Law Group are ready to assist you with egg, sperm and embryo donation contracts. If you have questions about donation, contact us now.
