Whose Kid is it Anyway? Or: Should Sperm Donors have Parental Rights?

Courtney Fraser, LSRJ Summer Intern (’15, University of California, Berkeley Law School)

California is considering redefining sperm donors’ legal rights in the wake of Jason Patric’s custody battle with his ex-girlfriend over a child they supposedly agreed would have no relationship with Patric once born. Now, however, Patric claims to have a “loving” relationship with the child and is demanding protection from what he sees as the mother’s unilateral power to decide whether he – stipulated a mere sperm donor – should have any legal ties to her son. If the child had been conceived without the utilization of assisted reproductive technology, the landscape would be different – Patric would be presumed the “natural father” of a child that he received into his home and held out as his own, or over whom he and the child’s mother voluntarily declared his paternity. Either of these scenarios would come with the rights and responsibilities of parenthood. Because Patric’s child was conceived via in vitro fertilization, however, this sperm donor has found himself – I’m so, so sorry – in a sticky situation.

Sperm donors, whether making deposits at a bank or for in vitro use with women to whom they are not married, are presumed not to be the natural fathers of any resulting children – absent a specific agreement to the contrary. The reasons for this are clear enough. After all, isn’t the whole point of going to a sperm bank (or one of the points, at least) to ensure that a woman can take her reproductive destiny into her own hands, free from interference by any man who might want a say in the matter? Even when the donor is not anonymous – if you’ve visited a trusted friend rather than the teller window, so to speak – there is no automatic basis for parental rights arising out of the transaction. This preserves the integrity of a system designed to create the possibility of fatherless children – but why would anyone want that?

One reason has already been touched upon: women’s reproductive autonomy. Another obvious point is the protection of the donors themselves – how many men would volunteer their genetic material (in a situation where they were planning not to assume parenting roles) if they knew they would end up responsible for child support later on? The threat that a presumption of sperm donors’ parental rights would pose to both of these groups is clear. Luckily, that’s not quite what’s being proposed in SB 115 – what Patric (and the legislator responsible for the bill) wants is the opportunity to win a declaration of parental rights through a showing that he has actually sustained a parent-child relationship following the child’s birth. This, interestingly, would protect biological fathers from unwanted interference in their reproductive lives – leaving mothers who use donor sperm totally vulnerable. Even though not just any man could succeed on the claim that he had formed a parental relationship with the child, thereby affording mothers theoretical protection from unexpected bids for paternity, a woman who maintains a relationship with the donor – or allows her child to cultivate one – could find herself hauled into court.

Another group on whom the proposed policy could have an intrusive effect is same-sex parents. After all, second-parent adoption only works if there is, in fact, not already a second parent in the mix. Would the rights of a sperm donor supersede those of the mother’s committed partner? Should they? A different possibility altogether – one that it would probably be too optimistic to realistically hope for – is that a law like this could open the door for more than two parents to claim legal rights over a child: a mother, a sperm donor, and the m0ther’s partner. Although the law has historically not been friendly to polyamorous relationships, Senator Hill claims that his bill is about acknowledging the “modern family” and how different it looks today from what the old laws anticipated. California does tend to be at the vanguard of progressive social change, but given what seem to be the more likely implications of SB 115, I’m suspicious. The question that remains to be answered is this: could parental rights for sperm donors represent an exciting step toward embracing all configurations of families after all – or will it turn out to be a Trojan horse full of men’s rights activists?

If the latter proves true, all I can say is I’ll be switching to Durex whenever I need to prevent an unwanted custody battle.