Virginia Case on Parental Status of Partner/Sperm Donor

I’m taking a detour from ongoing conversation here to write about a case currently pending in Virginia.  It was argued before the Virginia Supreme Court this fall and should be decided in the new year.  This being the case, I think it is worth taking a few moments to sum it up.  It is one of those cases that falls (or nearly falls) between the cracks in various statutory structures.   You can read the lower court opinion or this blog post, too, if you want more info.

Billy Breit and Beverly Mason were a long-term cohabiting couple.   They weren’t married–which turns out to be a very important detail.    They wanted to have a child.   Intercourse alone did not work so they consulted a fertility doctor.  The doctor used Breit’s sperm to fertilize eggs extracted from Mason and then transferred to resulting embryo into Mason’s womb.  In time this worked and a child (Lillian) was born on July 13, 2009. 

Eventually the couple split up and Mason tried to prevent Breit from seeing the child, asserting that Breit was not a legal parent.    She relied on a couple of Virginia statutes.  One says

“[a] donor is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother”

A second statue provides:

“[d]onors of sperm or ova shall not have any parental rights or duties for any ․ child [conceived as a result of assisted conception].”

You may not like these statutes but they look fairly clear on their face.  They are also not that unusual–these are statutes designed to facilitate the use of donor sperm and generally speaking donor’s aren’t meant to be legal parents.  The exception, you’ll note, is when the donor is married to the woman who gives birth–but that’s not the case here as the couple wasn’t married.

I think it is fortunate for Breit that he can point to a several circumstances that might motivate the court to find a way around the statute.   Perhaps most importantly (from a legal point of view), just after Lillian was born Breit and Mason signed a Voluntary Acknowledgment of Paternity (VAP).   In general, signing a VAP under the right circumstances (and the circumstances were right here) makes a man a legal father of the child.   Indeed, that’s the very purpose of VAPs.

While I understand the law around VAPs probably none of you are very surprised to learn that as a theoretical matter, I don’t think that’s the best foundation for legal parenthood.   As it happens, Breit has what I think is a much better case.   This involves putting the VAP in a larger context.

On July 13, 2009, mother gave birth to L.F. The following day, July 14, 2009, mother and Breit executed a sworn, written “Acknowledgment of Paternity,” naming Breit as the biological and legal father of the child. Mother and Breit agreed to give L.F. a hyphenated surname comprised of mother’s and Breit’s surnames. Mother and Breit were named as L.F.’s mother and father on L.F.’s birth certificate, pursuant to Code § 32.1–257(D), and they jointly mailed birth announcements to friends and family naming mother and Breit as L.F.’s parents. Mother and Breit continued to cohabitate for months after L.F.’s birth and represented to friends and family that Breit was L.F.’s legal and biological father. Breit maintained L.F. on his health insurance, cared for L.F., and established a relationship with her.

Taken all together, it looks to me like Breit could make a nice argument that he is a de facto parent–with or without genetic linkage.   He’s established himself as a parent to the child and the law should recognize that.

In the litigation so far, Breit lost in the trial court but won in the intermediate appellate court.   That court concluded

Mother’s interpretation … forecloses any legal means for an intended, unmarried, biological father to establish legal parentage of a child born as the result of assisted conception, merely by virtue of his immutable status as a “donor.” Such a narrow reading of Code § 20–158(A)(3) ignores the intent of the legislature to ensure that all children born in the Commonwealth have a known legal mother and legal father.

As I said, the case has been argued before the Virginia Supreme Court. It will be interesting to see what the Court will do.    I’ll watch for it, but if anyone else sees the opinion first, feel free to let me know.





24 responses to “Virginia Case on Parental Status of Partner/Sperm Donor

  1. I’m shocked that a court even took mason seriously let alone let her win. but really I should not have been surprised- its only logical when you decide to draw an arbitrary line between conception via intercourse and other means.

    • The ART statutes are meant to be simple and clear–donors are not legal parents. One way to look at the question here: Does the statute mean that donors are not legal parents by virtue of the genetic connection or does it mean that donors are disqualified from becoming legal parents by any means (except perhaps adoption?) I don’t think it means the latter and thus, a donor can claim parentage if he (or she) can point to some other route to that goal–like the VAP here. But of course, we will see if this is what the VA Supreme Court says.

      • I really think the UPA needs to be revised to eliminate the clause that says men are not fathers of the children they create is horribly unfair to those children and all of their paternal relatives who will never be able to prevent themselves or their children in generations to com from entering into incestuous relationships. And what reason is there for compromising the health and autonomy of an entire family? How can we grant one member of a family so much power that they would be able to keep private vital information that impacts all their relatives as well as the health of their community and society at large?

        It’s like the people that made that rule were only thinking of social and financial aspects of fatherhood when they came up with that idea. It is like they completely forgot about the family being rendered helpless to prevent birth defects by avoiding incest between 1st, 2nd and 3rd cousins, siblings, half siblings, parents, children, aunts, uncles, nieces, nephews, grandparents and grandchildren. All it takes is one unknown relative so it is important that records be available to families when communication breaks down internally and members are separated through no fault of their own. It’s like the people who made that rule totally forgot that the CDC collects information on the parents of each child born and uses it for medical research on birth defects and heritable disease. The CDC does not collect revised certificates from adoptions because they are useless for medical purposes – well an original certificate with non genetic parents of donor offspring is useless to the CDC also but they are basing medical research on it just as if it were genetically accurate. We have to change the law to protect fathers like the guy in the story and to protect public health and to protect the rights of people to birth records that are medically usefull and accurate genetically. Example what possible use is a birth record with the names of two mothers on it?

        Forget social fatherhood for a minute and focus on making records accurate for health reasons

        • According to the info on this case he is on the birth certificate already.

        • I understand this is what you’d like but the whole point of these statutes is to negate the effect of genetic connection in ART cases. You don’t like this–I get that. But realistically I don’t think there is any possibility that states are going to make the changes you want. I don’t mean that you cannot make your point here, of course.

          I’m interested in a more practical question of whether the schemes in place are workable. The problem, in my view, is that there are two bodies of law at work–one for kids created via intercourse and one for kids not created via intercourse. I’m not convinced this is a stable system and this case is one of those that shows way. But it also does suggest a way of harmonizing them–that all the ART statutes tell us is that genetics gives you no edge but that they do not eliminate you from contention if you can go another route.

      • Don’t real donors sign donor agreements? I mean if one buys into this whole charade they hang their hats on egg and sperm donor agreements where they agree to reproduce and not raise the resulting children.

        Did he sign such an agreement? Not that I think such agreements should ever be enforced by the courts. I have a whole collection of agreements from all the major cryobanks and andrology labs. I get such a kick out of the sick twisted language where they relinquish parental control of any children born resulting from them having conceived with gametes they donated.

        • Some states only extinguish the rights a donor would have via genetics if a doctor is involved. (CA is such a state.) In such states you probably always see agreements. Some states require agreements. But other states (Washington is one) draw the line purely on the manner of conception. Not intercourse, then donor.

          I know Marilynn will hate this, but the idea is this: There are a lot of cases where the whole idea is that the guy is a donor but people do the inseminations informally at home. The WA statute makes those cases come out as planned. Perhaps those cases are more common than the one’s like the VA case? It’s hard to know. But as is so often the case, solving one problem (it’s sometimes called the turkey baster problem) may create another.

  2. I see a couple of major issues in this case.

    First of all, the mother’s interpretation of the two statutes you described is a dangerous one. Many people are already wary of assisted reproduction, fearing what it means about their masculinity/femininity or, probably more accurately, maleness or femaleness to be unable to conceive without medical support. This case seems to legitimize these fears, by suggesting to men that they are not “real” men or “real” fathers if reproductive technologies come into play.

    Secondly, this case shows the dangers of privileging marriage above other types of relationships. There seems to be no question as to whether the couple were in a legitimate relationship, it just happens that this relationship wasn’t a married one. The privileging of marriage over other forms of partnership is one that impacts couples who don’t have the legal right to marry, or choose not to exercise it, on a daily basis. In all but nine U.S. states, this is a reality for all same-sex couples.

    It will be interesting to see whether this case will be decided on biology, intent to parent, or some combination of the two. As a person in a same-sex relationship, I would hope for the latter: emphasizing biological connection risks implicating donors who don’t intend to have a parental relationship with the child, at the expense of the rights of non-biological parents (in same-sex relationships or otherwise). Emphasizing intent to parent might support these parents’ legitimacy and rights.

    • ” this case shows the dangers of privileging marriage above other types of relationships.”
      I agree and I think the most important relationship here is the one that would remain whether or not the parents were married and whether or not they loved, liked or even knew one another – the important relationship for the determination of parenthood is between a person and their offspring, not a person and their partners offspring or their spouse’s offspring. The important thing is not whether or not people are in love with one another when they conceive their offspring – the child will always be related to them and their families. So marriage, domestic partnership, friendship, compatibility, intent all is totally changeable while real actual parenthood between a person and the offspring they have is not changeable and should always be recognized as important to the health of all family members.

      This guy is the father of his own offspring. What is the problem with writing that down and what kind of person would want to prevent someone from meeting their obligations to care and support their offspring? Shouldn’t all minors be entitled to care and support from the individuals who created them and shouldn’t they deserve to be identified as those people’s children, their responsibility? Shouldn’t we all at the very least be entitled to legal recognition as a member of the family of people we are actually related to? Shouldn’t all people be born with the right to information that can help them prevent unintentional incestuous relationships? Who benefits from endangering a whole family that way?

      “Many people are already wary of assisted reproduction, fearing what it means about their masculinity/femininity or, probably more accurately, maleness or femaleness to be unable to conceive without medical support.”

      Conceiving offspring with people you don’t know is not really medical assistance, so are you just talking about this case where a person is ultimately able to fertilize the egg of a woman but with the help of a doctor assisting like with AI or IVF?

      Doctors don’t help Infertile and sterile people reproduce with donated gametes, Doctor’s help donors reproduce so that infertile and sterile people can take and raise their offspring without them around.

      • He’s already on the birth certificate, according to the appeal court opinion. The mother just doesn’t want to have to share the child with him anymore, despite voluntarily signing the paternity declaration, which I think is very bad behavior on her part. (very bad being an understatement) Poor kid.

        • Rebecca, I agree with you. Even if there was some good reason why he shouldn’t play a parenting role (e.g. abuse), she should argue the case on these points, not on the basis of outdated legal wording.

        • Indeed, if the facts really are as stated (a caveat always good to keep in mind) this is a person behaving very badly in my view. I’m not sure it is right to award him parenthood as a sanction, however. I’d rather find an affirmative reason to do that. But surely we should take time to observe the wrongness of her conduct.

      • I agree to the extent that the relationship of primary importance here isn’t the one that existed, or currently exists, between the two parents– but the relationships between the parent(s) and child. However we still fundamentally disagree on what constitutes “real actual parenthood”. I believe what makes Breit a parent is intention and action, not genetics. I would not feel any differently about this case of Breit had been a female partner (and non-biological parent) in this case.

        In regards to my second quote, I was talking about this case– so “medical support” as the use of IVF using the genetic material of both parents. However, I do believe the same thing when donor sperm/eggs/embryos are being used.

    • Very interesting points you make.

      As to the first one–the technology can be very low tech–like a turkey baster–but your point is really well taken. (And of course in this case, it isn’t low tech.) The messages is that real men (men who will be fathers) get women pregnant via intercourse. I think there’s a lot to think about there.

      And yes, this is all about privileging marriage. I’m sure some would say that he should have married the woman before getting her pregnant and this is what comes of his failure to do so. Set up a system so that if men want to protect their rights they should be eager to marry.

      Like you I am very interested in what the VA court will do. VA is not generally friendly to same-sex couples but the outcome of this case (which is a sympathetic one for the man) might offer some useful language. Unless, of course, it turns purely on biology. But the statute really does get in the way of that.

  3. Astonishing. This makes no distinction whatever between assisted conception via sperm donation and an unmarried couple having IVF. Surely it would make more sense to sign a legal agreement establishing paternity before fertility treatment even starts, than to have to untangle things after the child is born.

    • If you look up in the comments I took a stab at explaining why the law is the way it is. The drafters are worried about people who do home insemination. In those cases, the man is really meant to be a donor not a father and they’ve set up the law to reach that result. This was actually seen as a progressive revision of the law round about 2000 because there were a number of cases where people having done home insemination unknowingly ended up with the men being legal parents.

      • I take your point but I wonder about the relative numbers of people doing home insemination, having sperm donation at a clinic and IVF. I’m pretty sure based on UK stats that couples (married or not) having IVF far outnumber sperm donation and are the more likely scenario to be affected.

        • Fair point. There were a number of turkey baster cases (as it were) that lead to the move to change the law (and it was only changed in some places.) But perhaps that was then and this is now. Maybe fewer people are doing home insemination and more unmarried couples are using IVF. In that case, the law is out of step. I really don’t know what is more common. (Married couples using IVF will be fine because of the marital presumption.)

          Home insemination is by far the cheapest, of course. FWIW. (I’m thinking people who do it might be least likely to have lawyers. Those using IVF are engaged with clinics who you would think might raise the key legal issyues, but apparently not.)

          • All which shows that these laws are specifically designed to serve the needs of art customers, i find it wrong to deliberately manipulate the law like this


            • There is no doubt that laws like the “donor is not legal father” one are designed to facilitate use of third-party gametes and thus, ART. I’d only raise a small quibble with the way you said it: The reason for laws structured like that in VA (and WA) are that people can do insemination with sperm from a friend at home in a completely low tech way. In this circumstance I wouldn’t call them “customers” as no one is selling anything to them And one can see the expansion of the law to cover this situation as a response to a circumstance where the law as initially drafted was creating trouble. (Earlier law says if there is a doctor involved then the donor is not a father and you can do home insemination with no doctor, people were ending up with legal configurations that weren’t at all what they thought they were doing.)

              But this doesn’t take away from your point that these laws are designed to facilitate use of third-party gametes and of course, one can say that’s a bad idea.

  4. If she succeeds and their child discovers what she tried to do she’d better be ready with an apology.

    All this idea that parenthood is something earned through effort instead of being an obligation that arises out of having offspring just treats the child as some sort of public land to be homesteaded upon. Like you can earn the right to keep a person all to yourself if you move in on the territory and claim it as your own and start taking care of it. Its just lovely to think that a little helpless person is up for grabs to whoever wants them the most and puts in the most effort they earn them like a prize and if not effort then intent and if not intent then money. The people who created the child by reproducing should have zero responsibility for the care and upbringing of their young and they are of zero relevance in their lives they just manufacture the land to be squatted upon and tilled, treated like dirt like property owned and fenced in private and kept by the guy with the fattest wallet or the woman with the most love in her heart. They are not treated like free individuals born unto themselves for their own purposes as the responsibility of the people who made them until they are adults – that is freedom property of nobody obligation of 2 who caused their existence. When those 2 forget their obligation and see the child as property then everyone does and their children wont be free, they’ll serve a purpose they’ll be harvested and grown and raised to serve a purpose like chickens in a pen at Foster Farm.

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