June 2, 2014 By Paul Wallin
Can a sperm donor petition for child custody?

Under California Family Code section 7613, if a woman conceives a child using sperm donated by a man who is not her husband, the woman’s spouse is treated under law as if he or she is the child’s natural parent.

A man who donates sperm to a licensed physician or licensed sperm bank in this situation is not considered the child’s natural parent, unless otherwise agreed to by the woman and the donor in writing before the child is conceived. Generally, without prior written agreement between the parties, the sperm donor has no legal claim to parenthood if he later decides he wants to seek custody of that child.

In a recent case, the California Court of Appeal was asked to decide whether a man who has an intimate relationship with a woman but who is otherwise a sperm donor as defined by Family Code section 7613 and has no prior written agreement, can still seek child custody or visitation with a child conceived through artificial insemination.

Jason P. v. Danielle S. (Case No. B248629, California Court of Appeals, May 14, 2014)

Jason P. filed a petition to establish a parental relationship with Gus S., a child born to Danielle S. through artificial insemination. Danielle objected, arguing that Jason was a sperm donor and therefore was not Gus’s natural father as a matter of law.

Jason argued that his relationship with the mother and later with the child permitted him to seek a parental relationship with the child. He claimed that section 7613 did not apply because he was not technically a sperm donor, but rather Gus’s natural father, according to California’s law governing a “presumed parent” under Family Code section 77611(d).

Jason and Danielle had lived together for many years, but they never married. Jason had told Danielle that he was not ready to be a father, but that Danielle could use his sperm to conceive a child. Danielle chose to use Jason’s sperm rather than an anonymous donor’s sperm she had purchased.

Gus was conceived through in vitro fertilization (IVF). Jason provided the sperm used in the IVF procedure to a licensed fertility clinic. Jason was not listed on Gus’s birth certificate and there was no written agreement declaring paternity.

After Gus’s birth, Jason developed a relationship with him. Gus referred to Jason as “dada” when the two spoke using Skype. Furthermore, Gus and Danielle stayed with Jason at his apartment from time to time. Jason maintained the relationship until Danielle ended it. He then sought custody and visitation rights with the child.

A trial court rejected Jason’s argument that section 7613 did not apply in his case. The court found that because the undisputed evidence that Jason’s semen was provided to a licensed physician and surgeon, Gus was conceived through IVF using Jason’s sperm, and because he and Danielle were never married conclusively, he was a sperm donor, not a parent, pursuant to section 7613.

Accordingly, the trial court concluded that Jason was not entitled to any custody over or visitation with Gus. Jason appealed.1

How Did the Appellate Court Rule?

The Court of Appeals reversed the trial court’s ruling. The Appellate Court found that although Jason was a sperm donor according to section 7613, in this situation he was not prevented from seeking a parental relationship under California’s “Presumed Parent” law.

Family Code section 76112 provides that a person is the presumed parent of a child conceived under certain conditions including, but not limited to the following:

  • While the parent and the child’s mother are or were married and
    • The child is born during the marriage; or
    • The child is born within 300 days of the end of the marriage;
    • Before birth, the parent and child mother attempted to marry and
      • The child is born during a period of cohabitation; or
      • The marriage is invalidated and child is born within 300 days of the end of the marriage;
  • After birth, the parent and child’s mother attempted to marry and
    • The parent consents to being named on the child’s birth certificate; or
    • The parent pays court-order child support;
    • The parent receives the child into his or her home, and openly holds the child out as his or her natural child.

The court determined that Section 7611 requires that a family relationship must exist. To qualify as a parent under subdivision (d), the presumed parent must show that he or she “receives the child into his or her home and openly holds out the child as his or her natural child.”

A mother who wishes to retain sole custody rights to a child conceived through assisted reproduction can limit a sperm donor’s contact to ensure the relationship does not rise to the level of a parent-child relationship.

In this case, the court believed that Jason had established a family relationship with Gus after the boy was born. Moreover, Danielle permitted the contact for over 2-and-a-half years. As a result, the Appellate Court ruled that the trial court erred in its decision and reversed the lower court’s denial of Jason’s petition.

A Sperm Donor May Be Able to Seek Parental Custody under Certain Conditions

California law provides protections for both receivers and donors of sperm for the purposes of artificial insemination. Previous court decisions have concluded that the California Legislature has “afforded unmarried as well as married women a statutory vehicle for obtaining semen for artificial insemination without fear that the donor may claim paternity and has likewise provided men with a statutory vehicle for donating semen to married and unmarried women alike without fear of liability for child support.”

However, the rule is not so expansive to prevent a sperm donor from seeking parenthood in every case. The Appellate Court in this case confirmed that “there is nothing to indicate that California intended to expand the reach of this provision so far that it would apply if a man provided semen to be used to impregnate his unmarried partner in order to produce a child that would be raised in their joint home.”

A sperm donor must meet at least one of several conditions prescribed under Family Code section 7611 in order to establish his parenthood.  Provided that he can, a sperm donor may then be able to seek custody over and visitation rights with his child.

Wallin & Klarich Can Help You Fight for Your Rights as a Parent

If you are facing difficulty establishing or maintaining your custodial rights as a parent, you should speak with an experienced child custody attorney from Wallin & Klarich as soon as possible. We can help you fight for your parental rights whenever you have a legitimate claim to custody.

Our attorneys at Wallin & Klarich have over 30 years of experience in California family courts helping our clients to protect their parental rights in a custody dispute. With offices located in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our attorneys at Wallin & Klarich are conveniently located near you to help you get the best possible result in your case. You don’t have to go through this alone.

Call us today at (888) 749-7428 for a free telephone consultation. We will get through this together.

Information retrieved from:

1. http://www.courts.ca.gov/opinions/documents/B248629.PDF

2. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=07001-08000&file=7610-7614

Image Retrieved from:

Source: http://en.wikipedia.org/wiki/File:Sperm_stained.JPG, Author: Bob J Galindo

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