Is Jason Patric A Dad, A Donor or Both?

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.


36 responses to “Is Jason Patric A Dad, A Donor or Both?

  1. Seems discriminatory against subfertile men who can not reproduce without medical assistance.

    • i suppose the same would apply to gay men

      • I’m not sure what it is that you think seems discriminatory? Having clear rules isn’t of itself discriminatory. Do you mean to refer to my closing comments–about actions speaking louder than words? This would return us to what I think of as the pregnancy problem: Women can be pregnant and men cannot and so what do we let follow from this? But I’m not sure enough this is what you are referring to to go further with this just now.

        • it seems from the article they tried for a while via intercourse but failed. had thtey succeeded, the guy would have been a legal father with no questions asked.

  2. I hate that this is brought up as a sperm donor case when it isn’t. This is a custody case of two people who had a kid together that didn’t work out the parenting details legally prior to the child’s birth.

    • it is impossible to work out details of parental responsibilities before birth.

      • In this case it’s not impossible. It’s not as if this was an unplanned pregnancy. If it was an unplanned pregnancy, I’d agree with you.

        • But Greg you have to understand that a man has no legal parental obligations to fulfill until his child is born. An unmarried man has no legal obligations to fulfill with regard to any other person. A man’s girlfriend is a legal stranger to him. If she is pregnant he cannot add her to his medical insurance for instance. The reality is that a man may have no idea that he impregnated a woman if she does not inform him. If she does inform him and they are on the outs and she does not wish to see him and does not want him involved in the child’s life, she can thwart his offers of food or stroller shopping. There is little he can do under those circumstances and to persist crosses the line into harassment and she could get a restraining order and that would not bode well for him after the birth of his child if he wants to share custody. His obligation to provide support is not to her but to his child once born. Many men are absolute jerks about getting women pregnant but after the child is born they come around and grow up and take responsibility. It’s shameful to make the child pay the price of loosing their father forever because of how he did or did not behave prior to them even being born.

          This is why the whole pre-birth contract arrangement stuff is crap and should never be honored by court. A child stands to loose a parent and halft their family because of such arrangements. How dare anyone contract or arrange for such a thing? Why does that child not deserve both their parents care and support? Why do other minors get to have a legal right to the support of both parents and kinship in both parents families but they don’t get to have that.

        • well let me correct my statement partially- in general one can not contract custody arrangements prior to birth, whether the pregnancy is planned or unplanned. the contract would not be held up in court, its not legal. certain ART situations are an exception, apparently this was one of them.

          • But doesn’t that usually happen in a co-parenting situation? Either way I think both parties are at fault here. And again I don’t think this is a sperm donor case as it’s being called.

            • By co-parenting do you mean parents who had a kid together intentionally while not being romantically involved? i think the law doesn’t take into account whether or not they are romantically involved. If they’re not married, they are not married, period.
              thus, whether or not they can legally contract parental status and responsibilities before birth- is up to the state. what i understand from this post is that this is only possible in california.

              in other states like my home state of new york i don’t think it makes a difference what the contract says. the statute says what the statute says and parental status is determined by the statute only. caveat i’m not a lawyer so no one shouold just take my word for anything.

              • Yes, that’s what I mean. It’s popular among same sex couples and acts similar to the way a divorce does with visitation and parental rights. You’re right it depends upon the state where it’s different everywhere. My point is these two parties should have looked into that prior to going through with it. Now you have a child in the middle who suffers.

      • Oh so so true.

      • I’m not sure what you mean. It’s possible for a man and a woman to agree that he will provide sperm but will not have any rights/responsibilities. And in some states you can even be confident that an agreement like that will have legal force if you to it right. Or the reverse–that he will have rights/responsibilities. But may you mean to focus on the details–as in who will do exactly what tasks when? I’m inclined to think that people may believe they can make detailed agreements on this level but usually will find that they cannot know enough in advance. And these sorts of agreements probably couldn’t be enforced.

        • What I mean is that if it was her understanding that he would have no parental rights are responsibility that should have been legally agreed to prior to conception and at the latest prior to birth. To have this going on now makes it a custody case that is just like most messy divorce custody cases that only damages the child.

  3. I feel bad for fathers because some mothers are just stone cold btchs. For every ten cases where a mother is trying to cut her kid’s father out of the picture there is like 1 father trying to cut his kid’s mom out of the picture. And the parent being cut out is never trying to cut anyone else out of the picture, they are just trying to do their job, support their kid. They want to give their child what they owe their child. The parent doing the blocking is often trying to make their partner the other legal parent of their child – at the expense of the child though, loosing a parent to gain a step parent thatI is already there. The parents should work together to give the child all they deserve which is both parents and the involvement of step parents if their parents happen to be married to other people. Its a system that works and it works to the benefit of the child rather than to the detriment.

    In Jason Patrick’s case she wants to exclude him and just raise the kid on her own as if she made the kid all by herself. Her kid does not deserve their father’s care and support because their mother is an arrogant self centered ego maniac I guess.

    She wants the right to have and raise her child alone. Someone should tell her that if you have offspring your no longer first and nobody cares what you want anymore. Your kids wants and needs are now in front of you in line. She should have to cooperate with her kids Dad the way millions of other women have to cooperate with their kid’s father’s whether they like it or not makes no difference. The involvement of the child’s father is not to serve her. It has nothing to do with her actually. They have a relationship independent of her. She is being a big baby.

    • There are women who are cruel and unreliable and there are men who are cruel and unreliable. Frankly, I don’t think gender has much to do with it. It’s better not to find yourself relying on people like that.

      But perhaps more to the point, we have no way of knowing whether any of the people in this saga fit those descriptions. I think you’ve chosen to read the facts the way you want to. And given your general view you might be sympathetic to Patric even if it was agreed by all that he had solemnly promised not to seek any legal rights. You wouldn’t approve of such an agreement in the first place, right?

      In any event, I think you’ve lapsed into hyperbole that makes it pretty hard to go forward from your post.

      • i would say the very act of trying to separate a child from a fit parent entitles one to some unflattering adjectives, although i would be careful about genderizing it too.

      • You can draw conclusions about societal gender bias by drawing obscure correlations between Sherpas and surrogates, but you’ll scold me for noting gender bias the fact that women try to block the legal parenthood of biological fathers more frequently than men try to block the parenthood of biological mothers?

      • Perhaps more to the point we do in fact know that the players in this saga do fit those descriptions. You have a biological mother attempting to block legal fatherhood by the biological father on the basis of her personal preference rather than for the protection of the child. She is not asserting that he is a dangerous sex offender. She is not asserting that he is physically or emotionally abusive to children. He’s never been arrested and convicted of crimes against children. She is not even asserting that he has a lifestyle that is inappropriate for rearing children. She is simply saying she was not planning on having to share the responsibility of raising the child with his father.

        So you’ll note Julie that he is not asserting that the mother is dangerous or unfit. He is not saying anything derogatory about her or her lifestyle or her skills as a mother. He does not wish to separate their child from her, he only wishes to do his share of child rearing and provide the child what the child is due. He is attempting to include his son in his family as his son deserves. He is attempting to provide for his son as he knows he is suppose to. I might add that millions of biological fathers are required to provide for their children whether they like it or not.

        Are children with poor mothers on welfare the only one’s who deserve to have their bio fathers named as legal fathers?

        You once wrote one of the worst things I’ve ever read; that the law is written so that responsibility falls to biological fathers when there is nobody more suitable around to do the job. It was a reprehensible thing to say with wretched implications for the minors involved as well as for their father’s and father’s families. And yet here in this case, as in many, the mother is not even asserting that she has someone ‘more suitable’.

        So here we are in a world where a bio mother does not even have to have someone ‘more suitable’ than the bio father around. He’s so darn irrelevant that the mother need not have a reason for asserting she has a more suitable choice. She need not even assert a reason for preferring him to be absent.

        We only see this kind of vile behavior from men when they are married and had children with traditional surrogates – when they are trying to terminate the biological mother’s relationship for someone they find more ‘suitable’ their wives.

        What is wrong with step parenthood? And what is wrong with people that they think what they want is more important than what their child deserves?

        • “Are children with poor mothers on welfare the only one’s who deserve to have their bio fathers named as legal fathers?”

          This is exactly what they think! The whole fake defense of marriage by NOM, which I think is actually a Koch Brothers Libertarian front group trying to separate marriage from reproduction rights, is about how marriage is needed to keep poor people from relying on the government, by keeping men from abandoning the mothers of their children, because they have a social norm about what good men do. It’s not working though, because they also are libertarians who believe that rich single people have a right to use sperm donors and even genetic engineering to get rid of their diseases and enhance their children.

          • It never worked. Just look at history.

            • Marriage used to work quite well. Not always, obviously, but just a generation ago most fathers were married and supported their families.

              • not according to the moynihan report.

                • Yep, back in what John seems to think were the “good old days” there were plenty of men who got a woman pregnant but did not marry her (particularly if she was of a lower social class, some of them were married to other women at the time) or who ran off leaving a wife and the kids to fend for themselves.

                  • John Howard

                    I support the “dead beat dad” changes in law that hold unmarried fathers responsible for their offspring, I don’t advocate for a return to illegitimacy or legal abandonment of offspring. And I seem to be the only one here who says adultery is still a crime and is not a right. I wasn’t the one making that argument you object to, it was NOM I was referring to.

              • I think married couples hid issues in their marriage and ignored infidelity more so than today. I don’t think it worked well it just seemed that way on the outside.

      • This rant is a little off topic, but I typed it in last night in response to the incredulous comment that “I don’t think gender has much to do with it” and I may as well hit Post.

        There’s been a sea change in how we think of who has children. It used to be the man who had children – they took on his name, worked for him, inherited from him, and if they were girls, were “given away” by him (or even sold for a dowry). Sometimes a man would go through several wives in the course of having his children; if a wife died or went crazy, it doesn’t seem people cared which wife was the biological mother, the next wife was expected to fill the mother role for all the children whether they were hers or not.

        But these days people think of children as being the mother’s, and women go through several men in the course of having their children, who might not be involved in raising them, which is up to the mother. Even married men no longer feel like they are having children, it’s very tenuous, they know they are just bystanders who could have their kids taken from them at any moment, and are constantly reminded that they are not their kids but their wive’s, who is not even their wife but just a temporary spouse who they will owe money to forever, but who owes them nothing in return (except in those rare cases where the wife earns significantly more, but most high-earning women don’t marry someone who earns less (which explains the widening wealth gap).)

    • Lorraine Nowlin

      Being mean and cold hearted isn’t unique to men or women but Danielle Schreiber appears to be such.

  4. Why would some children deserve both parents while others only get one because of some stupid pre-birth contract signing away parental obligations?

    • Exactly! That was what was corrected when the Supreme Court ruled that illegitimate children deserved equal protection of their inheritance from their father, and states got rid of their distinctions between legitimate and illegitimate (not because it became a right to have children out of wedlock, but because the children that were created out of wedlock had a right to equal protections.)

  5. Lorraine Nowlin

    Has anyone viewed the video where Gus points to a picture of Patric and refers to him as “daddy”? I wonder how much strength that holds in this case in favor of Patric. I agree that this seems more like a custody case than a donor case. Patric claims to have been an active father in Gus’s life.

    • I have not seen the video. It’s evidence that might be relevant to the contested facts of the case. It might, for instance, show help show that the intention of the parties was the he be a social/psychological father as well as a genetic one. It might be important if the test the court uses turns in whole or in part on whether he had a parental relationship with the child. But if the only test is whether he was genetically related, then it really doesn’t matter (though it might make one feel better about the outcome.)

      I just want to be clear that things like the video are evidence and the importance of the evidence turns on what law you think we should be using.

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