I know that the parentage case involving Jason Patric and Danielle Schreiber has been all over the web for a long time but as it has finally arrived in the NYT, I thought I might as well take the time to comment. I don’t think I can begin to summarize the facts, so for starters I’d suggest you go and read the article. (I’m going to work off the facts as reported there.)
One thing to note at the outset is that many of the facts are disputed. I don’t pretend to have any special knowledge of the facts. Thus, I do not know about what did or did not happen. For instance, I do not know why Jason Patric was the one who took Gus to be circumcised when Gus was eight-days old. But there do seem to be a bunch of things that there is agreement about. Jason Patric is the genetic father of Gus. The pregnancy was achieved via assisted insemination rather than intercourse. There’s no clear written agreement about the particular intent of these two people at the time of the insemination. (There are, I gather, forms from the “sperm donor clinic” but forms are often just that–forms that people sign without paying too much attention to them. For this reason I wouldn’t describe this as a clear written agreement about the intent of these two people.)
It’s also quite striking to me that it doesn’t look like the two people (I will not call them a couple) consulted a lawyer in advance of taking action. I know it may seem self-serving to always invoke the need for legal counsel, and it may not be a cure-all. Still and all, I think legal consultation at the outset might have helped create a record that would clearly establish some set of facts.
Be that as it may, we are where we are. And the first thing I want to do is to sort out the particular questions that I think we ought to ask in trying to understand this case.
1. Was there an agreement between Patric and Shrieber at the time of the insemination? This is a question of fact. Either there was or there wasn’t. If the parties didn’t have the same understanding then there wasn’t an agreement. Sooner or later someone (likely a judge but possibly a jury) might have to make a finding about this fact but I don’t think I can do this from news reports and I don’t propose to try.
[The next questions are questions of law/policy. This is an important distinction. CA may have clear answers for some of them but not all of them. Other states may have different answers or no answers. But we can all discuss what the answers should be.]
2. So what if there was an agreement? Let’s assume for the moment that there was an agreement. (This could either be an agreement that Patric was to be a legal father or an agreement that he was not to be a legal father.) Does it matter? You could argue that the existence of an agreement is irrelevant. Thus, one might argue (and I know many of you will want to do this) that Patric is a legal father because he is genetically related and that no agreement should alter that.
3. If there was an agreement at the time of insemination, is agreement that existed then controlling forever? Or does it only last until some other agreement seems to have been made? Or until some course of behavior suggests that the parties have abandoned the initial agreement?
Let me take a specific point to illustrate this question. Let’s suppose you conclude that at the time of the insemination the intention of both parties was that Patric was to be a legal parent rather than simply to provide sperm. Does that settle the matter? Suppose you thought that at a later time Patric changed his mind and the parties agreed he would not be a parent (which might be why he didn’t want his name on the birth certificate)? Does the revised intent undo the earlier one?
This is always a tricky thing about intention. It can change over time. My intention one day may not be my intention the next. And our agreement today may be renegotiated tomorrow. Is legal parentage up for renegotiation? One could say that the original agreement (assuming it exists) settles the matter and it cannot be changed after that. But why that moment and not a later one?
4. What if there was no agreement? Suppose you conclude that what happened here was that the parties went into this with different expectations–then what happens? Does one person’s expectation control? Which person’s and why? More usually there’s a default position in law: In the absence of any agreement to the contrary, a man who provides sperm for the insemination of a woman not his wife is/is not the legal father of the child. (I believe in CA the law comes down on the “is not the legal father” side of the line, but someone should tell me if that’s incorrect.) Putting CA law aside, what should the law be?
5. What is the relevance of the later course of conduct? Quite apart from an agreement there’s lots of evidence here (contested, to be sure) about how the parties behaved after the child was born. What does that matter? Does it just help us decide what the agreement was? Does it help us decide if the agreement was modified? Or is it important quite apart from any agreement because it provides an independent basis on which Patric might claim parentage?
This last is particularly important to me, as many readers will know. Adults may enter into all sorts of agreements and may also change their minds. But in the end, actions speak louder than words and I think we must take into account the reality of a child’s life rather than the intentions of those around the child.