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June 26, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Occasionally, we run across a case like this. They’re rare, but they do exist, most notably in the case of Jason Patric whose ex, Danielle Schreiber tried for several years (and may be still trying) to keep him out of the life of their son, Gus. She attempted to do that via a California statute meant to protect sperm donors from being tagged for child support for children toward whom they never intended to play the paternal role.

Now, the official reason for those statutes is to protect married couples who, because the husband can’t father children, turn to a sperm donor for help. In those cases, states want to ensure that the donor doesn’t try to assert parental rights and thereby compromise the marital relationship as well as that of the parents and the child. But whatever the legislative intent, one result of those statutes is to shield sperm donors from any obligations to the children who carry their DNA. About that, more later.

So in Patric’s case, Shreiber attempted to block him from Gus’s life by claiming he was just a sperm donor under the terms of the California statute. This despite the fact that they two had had a lengthy relationship complete with trying to conceive a child. After a couple of years of litigation, a state appellate court ruled that Patric is not a sperm donor but a father who’s always been passionately involved with his son. As such, Patric has full paternal rights.

And so it is in the Virginia case of Joyce Rosemary Bruce vs. Robert Preston Boardwine. The facts are these:

Bruce wanted to conceive a child she coul d raise on her own, without the involvement of a father. Bruce apparently believed that if she became pregnant in a way that did not involve sexual intercourse, the biological father would not have a claim to any parental rights. To accomplish this goal, Bruce approached Boardwine, a longtime friend, and asked him to be a sperm donor. After some hesitation, Boardwine agreed. Although the parties discussed a written contract regarding any resulting pregnancy, none was ever signed.

Bruce explained the method she used to try to become pregnant. Boardwine would stop by Bruce’s house. He would go to a separate room. Then, he would give her a plastic container containing his sperm. After a brief conversation, Boardwine would leave. Bruce used an ordinary turkey baster to inseminate herself. No other person was involved. They did not go to a doctor’s office or to a medical facility.

Despite several tries, Bruce still hadn’t conceived, so she went to a fertility doctor and used semen from an anonymous donor. That didn’t work either, so she went back to the method she was using with Boardwine. On July 7, 2010, Bruce got the news that she’d conceived.

That raised the question of what role, if any, Boardwine would play in the child’s life. Unsurprisingly, the two disagreed.

Bruce testified that her expectation was that Boardwine would visit and “be involved as [her] other friends were involved.” She never anticipated that Boardwine would have the child alone away from her or that he would have formal visitation. She stated that she had no problem with Boardwine “having some involvement” with the child and the child “eventually knowing” that Boardwine was the biological father. Her desire was to be the child’s sole parent. They did not discuss Boardwine’s role. Bruce never asked Boardwine for financial support. Bruce testified that Boardwine attended one of her sonogram visits but did not participate in her prenatal care.

Boardwine explained that he intended “to always be involved” with the child. According to Boardwine, the two agreed that Bruce would be the sole parent and that he would be able to see the child as little or as much as he wanted. He stated that he expected to be a part of the child’s life, including attending the child’s sporting activities and being involved in the child’s educational and health decisions.

When Boardwine persisted in his desire to play a meaningful role in his child’s life, Bruce resisted. She refused to tell him about the child’s birth and didn’t name him as father on the birth certificate. Boardwine visited her and the child, but Bruce wasn’t receptive.

Eventually, Bruce told Boardwine to “[s]top coming by.”

So he filed suit to assert his parental rights. She defended same via the Virginia statute that’s much like California’s. Her theory was that, as a sperm donor, Boardwine had no parental rights. For technical reasons of statutory construction that are too tedious to go into, the trial court disagreed and the appellate court affirmed. Robert Boardwine is the father of the child he and Bruce conceived by admittedly unconventional means. He has parental rights to the child and it remains for the trial court to decide the extent of his involvement.

Joyce Bruce tried to control Boardwine’s parental rights. In this case, the state statute didn’t allow it. Now, just how much access to his child the family court will permit Boardwine is another story. My guess is it won’t be much. My further guess is that Bruce may resist allowing Boardwine even that much time with his child. After all, everything she’s done to date has been to that effect and I see no indication that she intends to change. Perhaps receiving his child support may ameliorate matters. But suffice it to say that, in order to deny a father his parental rights via a sperm donor statute, he has to actually be a sperm donor and nothing else.

That brings us to the question of why sperm donors, i.e. those anonymous men who contribute semen for the use of women they’ve never met and will never know, are permitted to opt out of their parental responsibilities. No other biological father in the country has that right. A few have their rights terminated, but other than them, every single biological father in the country has legal obligations to his offspring. But not sperm donors.

As I mentioned, the stated reason is to protect married couples who might need the services of IVF, but that doesn’t negate the fact that sperm donors are the sole exception to the rule that biological fathers have parental duties and rights. Yes, without those statutes, a sperm donor could conceivably upset a married household, but of course there are countless ways to do the same thing that aren’t prohibited by statute. Mom can have an affair with another man, conceive a child and carry it to term. Dad may believe the child to be his, but Mom’s paramour can still assert his parental rights to the child, irrespective of the damage it does to the family.

So the law isn’t exactly consistent. Indeed, sperm donor statutes look a lot more like legislative protection for a particular medical industry than anything else.

The only legal rationale for those statutes seems to be that neither Mom nor the donor intend for him to play a parental role toward the child, so he’s absolved of duties and deprived of rights. But of course the issue of a man’s intention to become a father is far thornier than any state legislator wants to deal with. Still, with the existing rationale for sperm donor statutes thin at best and actually unconvincing, it’s worthwhile considering whether a man’s intention to become a father shouldn’t play some role in deciding his rights and duties. As I said, no state legislature is going to start trying to distinguish one man’s intent to father a child from another’s not to. But the legal precedent is there. If a sperm donor’s intention matters, why not another man’s?

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