In November I wrote about a case that had just been argued before the Virgina Supreme Court. At issue was the parental status of William Breit. He and his then-girlfriend, Beverly Mason, wanted to have a child. They ended up using IVF. When the couple split up, Mason tried to prevent Breit from having contact with the child, arguing that he was a sperm donor and not a legal parent.
It’s critical that they weren’t married–had they been married, he clearly would have been a legal father. But Virginia’s statutory structure gave Mason a simple argument. The statutes themselves are quoted in the earlier post, but suffice it to say that Virginia is one of those states where the statutes say that a man who provides sperm for use by a woman who is not his wife is not a parent. That’s what was done here (argued Mason), so it would follow that Breit was not a parent.
Now as it happened Breit had a whole bunch of arguments for why this wasn’t the proper outcome in his case. Breit acted as a parent for at least four months before the couple split up. The couple executed a legal document acknowledging paternity after the birth of the child. And of course, he can invoke genetic linkage. (The last ought to be least important as all sperm donors can do that.)
Perhaps it is unsurprising, then that Breit just won in the Virginia Supreme Court. If you don’t want to read the full opinion, there’s press, too. As always, it’s important to look at the reasoning of the court as this will have an impact beyond the individual case.
It’s striking reading the opinion because except for the fact that Breit is male and provided sperm, the case starts like one of intra-lesbian cases. Everything in the way the couple behaved pointed to the intent of the parties to be coparents, but the woman who gives birth invokes formal law to deny that result. In response, Breit summons up evidence like that commonly seen in many lesbian parental rights cases–birth announcements, last names, cutting the cord. Of course Breit also invokes the acknowledgment of paternity–and this is something no woman can do.
Ultimately, the court concludes that the “sperm-donor-not-father” statute doesn’t prevent the unmarried couple from voluntarily acknowledging the man’s paternity though it does bar a claim of parentage based on genetic connection. (It must do the latter or the court’s interpretation would essentially gut the
sperm-donor-not-father provision of all meaning.)
Along the way the court suggests several times that the real point of the sperm-donor-not-father statute is the protection of married families using donor sperm. In those cases, the statute prevents the donor from interfering with the husband/wife/child family. But I’m sure this statute is also invoked by unmarried women. It seems to me the statute would still work for them as the court is clear that donor cannot use genetic testing to establish legal parenthood.
Two other features of the opinion are interesting. First, there’s a brief equal protection discussion–can you treat married men and unmarried men differently with regard to presumptions of parenthood? The answer, says the court, is yes. There’s an interest in promoting marriage and so you can give greater protection to parental status of married men.
Finally, Breit invokes his constitutional rights as a parent. The court agrees with him on this point and in doing so, they recognize him as a parent for constitutional purposes. This is a critical point to me–one which I have been thinking about for a long time. In recognizing Breit as a constitutional parent, the Virginia Court relies on a much older US Supreme Court case–Lehr v. Robertson (I’ve discussed this before on the blog and it should turn up if you do a search.) There’s even a short discussion of the rights of the child, which is a relatively unusual thing to see in a case like this.
Ultimately the court here concludes:
Simply put, there is no compelling reason why a responsible, involved, unmarried, biological parent should never be allowed to establish legal parentage of her or his child born as a result of assisted conception.
There’s probably something for everyone in that statement.