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.