Are Known Donors a Safe Choice?
by Naomi Cahn
Posted on May 20, 2014
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.'" 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.
 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 Path2Parenthood's Legal Advisory Committee.