Death of the Neighborhood Sperm Donor?

How one celebrity's legal battle could change how and where women shop for sperm in California.

Actor Jason Patric is a celebrity who isn't often in the press. It surprised me to see him all over the news recently, giving interviews about his custody battle with a former girlfriend -- and about a new law that would help people like him get the parental rights they think they deserve.

My husband and I were watching a TV interview with Mr. Patric, showing photos and videos of himself with his biological child. He said his ex-girlfriend was "keeping his son from him" and that new legislation could possibly help him gain parental rights -- something he said he wants desperately. Frankly, the interview was rife with inconsistencies. As a family lawyer, I knew something important was missing from the conversation and decided to do some research.

Here's what I found: Patric sued his former girlfriend, Danielle Schreiber, seeking parental rights over a child conceived through in vitro fertilization (IVF) using his sperm. Ms. Schreiber argued that Patric was nothing more than a sperm donor and therefore, under California law, did not have any parental rights. Patric argued that he and the mother were in a romantic relationship prior to conception (as well as sometime after), that he intended to be the father, and that because he had an on-going relationship with the child, he was entitled to the same parental rights as a conventional father. The Superior Court agreed with Mom: Patric was not an intended father, and granted her exclusive parental rights. Patric is now appealing the decision.

But while the appeal is going on, a new bill is moving through the California legislature that would directly impact the outcome of Patric's appeal, dramatically changing the rights of a sperm donor if an "on-going" relationship with the child exists after birth. From my standpoint that is dangerous and fraught with terrible unintended consequences.

Under current California law, when a man gives his sperm to a physician or sperm bank for use in the assisted reproduction of a woman who is not his wife, the donor has no parental rights unless there is a written agreement to the contrary. (See Fam. Code Sec. 7613 (b).) If parental rights are intended, they can be agreed upon before conception. If not, however, the mother, the intended parent, will possess the right to make decisions that are best for the child, including the role, if any, the sperm donor will play in the life of the child.

Senate Bill 115 ("SB 115"), a bill brought directly in response to the Patric case, seeks to change this, allowing a sperm donor the ability to bring an action at any time for parental rights when the sperm donor has an "on-going relationship" with the child. ("On-going" is so loosely defined, in its editorial against the bill, The Sacramento Bee wonders if a comment on Facebook might qualify!)

If SB 115 passes, the impact would be devastating and extensive. If a known donor could come back at any time and sue for parental rights, women would stop using known donors. They just wouldn't chance it, eliminating the physical and emotional benefits of this practice. The bill is opposed by the California National Organization of Women, but it is supported by some family lawyers in California.

The advantages of using a known donor are numerous. Two of the most important benefits are (1) health: knowing the donor will provide the child with more options in the event of a health crisis; and (2) contact: a known donor allows the child to know who the biological father is and, if appropriate, to have contact with that person.

Consider this: You are a single woman who wants to have a baby. You decide that rather than choose from a list of random donors at a sperm bank, you want to use the sperm of a good friend or even an ex-lover. But you are very clear about your intention: You will be the sole parent, and you will have total parental control over your child and your family, and current law guarantees this. You decide to use a "known" donor based on considerations of health, a sense of security, and perhaps greater stability. After careful consideration, you decide to use a friend's sperm. After the baby is born, the donor remains in your life. The donor is public about his biological connection to the child. The donor spends time at your home with the child. It seems a perfect situation, until the donor decides he wants more, despite your previous legal agreement. Suddenly the donor wants to make decisions about the child and wants a guaranteed amount of time with the child. So, even though that was never the plan prior to conception, under SB 115, that donor could at any point run into court seeking parental rights, demanding decision making authority as well as a timeshare arrangement. The mother's wishes be damned.

What happens should he win? He -- or any sperm donor -- could bring an action to stop Mom from moving out of state for a new job or a new relationship; inject himself in choices like religion and education; demand a visitation schedule that might include significant time away from Mom; this list goes on and on. How and why could a mother take this risk? Why risk this intrusion and uncertainty into her guaranteed rights? It would not only be costly, but emotionally damaging to both she and the child.

The idea of using a known donor is a step forward in fertility. It allows single women, lesbian couples, or reproductively-challenged couples the ability to create a family that includes the biological father, but without creating a legal relationship between donor and child. SB 115 will inject fear into every woman considering a known donor and, ultimately, chill the positive physical and emotional benefits of this trend, sending more and more women back to the sperm bank for a random donation.

Mr. Patric had the option to get an agreement in writing when he gave the mother his sperm. He did not. But his failure to do so should not ruin the ability of women in California to use a known donor when the option makes sense for them and their family.

*Article is strictly the opinion of the author.

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Stacy Feinberg is a mother of two and the head of the family law practice at Cypress LLP in Los Angeles.

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