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Are Known Donors a Safe Choice?

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by Naomi Cahn



         Last week, the California Court of Appeal for Los Angeles County issued its opinion in Jason P v. Danielle S.  In this highly publicized decision, the court allowed a known sperm donor to try to prove his paternity, and the case has sent ripples throughout the world of people who have used – or are thinking about using – known donors to build their families.

         As most of us know, Jason P. is the actor Jason Patric, and Danielle S. is Danielle Schreiber. As has been reported in multiple news outlets, Patric and Schreiber were involved romantically for a number of years, and the two of them tried for a pregnancy via sexual intercourse as well as through intrauterine insemination procedures. None of their attempts were successful and ultimately, Schreiber moved out of Patric’s house, tried to become pregnant with an anonymous sperm donor, and informed Patric that she was going to become a single mother.  Patric reportedly then gave Schreiber a letter stating that, although he was not ready to be a father, he would provide his sperm to her if she kept the arrangement confidential and did not let anyone else know about his “gift.”   Around that time, Schreiber decided to try In Vitro Fertilization.  Both Schreiber and Patric signed informed consent forms provided by the clinic and Schreiber allegedly filled in both her name and Patric’s name where the form asked for the “Intended Parent.’”[1] Using Patric’s sperm, Schreiber then became pregnant with Gus.  
 
The Jason Patric case does not mean that all known donors suddenly become fathers or mothers in the eyes of the law.  In this case, the wrinkle added by Patric's claim to paternity occurred, because the court decided to look at events which happened after Gus was born.  

The California gamete donation statute, like that still in effect in many states, provided that a donor was not a father if he gave his semen sample to a licensed physician to be used to inseminate a woman other than his wife (the statute, Cal. Fam. Code Sec. 7613(b), has subsequently been amended to allow for a written agreement otherwise).  Gus was conceived through In Vitro Fertilization, so it can reasonably be assumed that Patric provided his sperm to a licensed physician.  (By contrast, the Kansas Craigslist case, in which a man was found to be the legal father, despite agreeing otherwise with the couple who used his sperm, did not involve the use of a licensed physician for the insemination.)

At trial, the lower court heard testimony about the relationship between Patric and Schreiber before Gus was born.  Patric also produced evidence about the relationship after birth, and claimed that Gus called him Dada.  The court found that Patric was legally a sperm donor and did not have a parent/child relationship with Gus.  Patric then appealed to the intermediate-level appellate court (cases from this court can then be appealed to the California Supreme Court).

         The intermediate-level court agreed that Patric could not claim to be the father based solely on his biological contribution. But California, like other states, also allows for a paternity claim if the "presumed parent receives the child into his or her home and openly holds out the child as his or her natural child." The court, instead of finding that the two provisions of California law conflicted, reconciled them and decided that, even though Patric could not establish paternity because he had provided the sperm to a physician, he could try to show paternity based upon his claim to an established, familial relationship with Gus.  

         The court also sought to reassure women (slip op. pp. 13-14).  It observed that a woman who allows a known donor some contact with her child can still retain her legal status as the sole parent. To do so, the court advised, she should “limit the kind of contact” between the donor and the child.  Second, even if the contact might give rise to the statutory requirement of establishing a parental relationship, the presumption of parentage is rebuttable; for example, in an earlier case, the court held that even if a man had shown his status as a presumed father, the presumption had been rebutted based, in part, on “inappropriate conduct”.

         Because each state applies its own law, and because the facts in each case differ, generalizations are impossible. No one source has collected all cases involving known donors and agreements that work or conversely, don’t work.  Even if the parties go to court to resolve their rights, the case may not be reported in official legal reports, although some cases may occasionally be sufficiently newsworthy that media sources seize upon them.

There are some unusual features to this case that distinguish it from other known donor situations.  First, there was no formal agreement.  Yes, there was a letter written by Patric, and yes, there were informed consent forms.  The court however found that the informed consents simply addressed medical procedures rather than any understanding between Patric and Schreiber (slip op. at 16).  Second, Patric was able to produce evidence of a potentially close relationship with Gus, seemingly supported by Schreiber. For example, in addition to the “Dada” claims, Patric alleged that when he was in New York for six months, Gus and Schreiber flew there several times and stayed with him.  Third, California has its own distinct sets of laws.  Note that Patric still has to prove that he should be considered a parent under California law.

Those are the real lessons of the case.   If you decide to use a known donor, get the agreement in writing before conception.  Second, follow your state’s procedures concerning gamete donation.  And third, unless you want the donor to claim parentage, don’t let the donor get too close.

Read more about known donor contracts here.

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[1] Slip op. at 4-5.

Naomi Cahn is a George Washington University law professor and co-author of the book, Finding Our Families. She is also a member of The American Fertility Association’s Legal Advisory Committee.

Comments

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Marna Gatlin May 21, 2014 12:26am

I cannot emphasize enough the importance of a legal contract between parties that is created by a licensed attorney specializing in advanced reproductive technology. This is not something that can be agreed upon with just a Gentlemans handshake.

Because I am not an attorney I can only make an educated guess that had a proper legal contract created by a licensed attorney specializing in advance reproductive technology there would have been no court case.

We strongly encourage all intended parents that we assist within our organization to always retain the services of an attorney when embarking upon an egg donor cycle regardless of what gametes are used- an anonymous egg donor, a known a donor, or a donor that is a family member – the same goes with sperm donation.

Clinic consents just don't cut it we see that clearly within the Jason Patrick vs Danielle Schreiber case. You know the other piece to this but I'm curious about that has not been to my knowledge discussed is where was mental health through this process?

I feel strongly that all clinics should require a psycho-ed session with a mental health therapist if egg donation or sperm donation is used to create children. This is an opportunity for a mental health therapist to meet with all parties involved ( in the event of known egg donors or known sperm donors) to discuss the expectations from each party. If coparenting is going to take place and what that might look like. To ask the sperm donor or egg donor what their role if any is going to be in the child's life.

If those things have been addressed I had of time my thinking is there wouldn't have been a court case.

My concern right now of course is for Gus. It's pretty apparent that both parents love this little guy very much or they wouldn't be in court fighting over him and attempting to establish Who's Who in this little guys life. But I wonder what kind of story he's going to be told when he's old enough to understand - " Mommy and daddy went to court when you were just a baby because daddy really wanted to be your daddy and mommy wasn't so sure that was a good idea."

So my public service announcement for the night is if you're embarking upon third-party reproduction to create your family don't skimp on the lawyer part. It will be by far the best thousand dollars you've ever spent your life to have a little bit of peace of mind and have a clear picture of the expectations of the cycle and who's who and what role they will fulfill.

Marna Gatlin
Founder - CEO
Parents Via Egg Donation
www.pved.org
" changing the world one baby at a time"

Amy Demma May 21, 2014 7:18am

I applaud the American Fertility Association for calling for a Known Sperm Donation Agreements when it is the intent of the parties that the sperm provider be deemed a donor without any parental rights. The flip-side, when unmarried partners intend to parent a child conceived through medically assisted family building efforts, calls for a Co-Parenting Agreement between the intended mother and intended father. In either scenario, it is absolutely critical that an agreement be drafted by an attorney familiar with collaborative or 3rd party family building and that each party have independent counsel.

Amy Demma, Esq
Law Offices of Amy Demma
www.lawofficesofamydemma.com