Sperm Donors and Presumed Father Status

M and J began a romantic relationship in 2002. M is a certified rolfer (a form of physical trainer) and J is a well-known actor. M wanted to be a mother, and J agreed to father a child with her. Sadly, after many tries, they were unsuccessful.

During their relationship, they had many breakups and reconciliations, but ultimately terminated their romantic relationship in 2009. However, they remained friends, and J agreed to provide sperm for M for an in vitro fertilization (IVF) attempt at pregnancy. The IVF procedure was successful, and M became a mother to S in December of that year.

During M’s pregnancy, J helped with some of her expenses, but he did not tell anyone that he was going to be a father. He did not attend any pre-natal classes, nor attend child birthing classes with M. He was not present for S’s birth, but he did go to the hospital shortly thereafter. While there, he did not hold S, take pictures of him, nor sign his name to S’s birth certificate.

After M brought S home from the hospital, J would come to M’s home to see S. According to M and her sister, J would come sporadically. According to J, he was there daily (unless he was acting out of state).

For the next two years, J continued to be a part of S’s life, while maintaining his acting out of state. S continued to live with M, but the three of them would travel together. M and J would also argue about how to parent S, with M complaining that J was abusive and trying to control her through S. Ultimately, their relationship ended in mid-2012, with both obtaining lawyers to for S’s custody.

At the trial court level, the judge ruled that J was not S’s presumed father under Family Code Section 7613(b), and that J was not entitled to parental rights. The law states: “…The donor of semen provided to a licensed physician … for use in assisted reproduction by a woman other than the donor’s spouse is treated in law as if he were not the natural parent of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.” (In other words, because J was not married to M, he did not want to be a presumed father, and the sperm was donated to a licensed medical doctor - necessary for the IVF procedure - J was not recognized as S’s father.) J appealed. The appeal took two years, and during that time he had no contact with S, but he continually contacted M to where she obtained a restraining order against him for harassment.

The Appellate Court agreed with J: “…7613(b) only . . . preclude[s] a sperm donor from establishing paternity based upon his biological connection to the child, and does not preclude him from establishing that he is a presumed parent under section 7611 based upon post-birth conduct.” The idea behind the “presumed father status” is that an individual who has demonstrated a commitment to the child and the child’s welfare –regardless of whether he is biologically the father – is entitled to the elevated status of presumed fatherhood. Since J acted like a father to S, he had the right to assert presumed father status.

The case was returned to the trial court to determine if J was a presumed parent. The trial court found for J, and provided him with his rights as a father including visitation of S. M appealed.

The Appellate Court agreed with J regarding presumed paternity, but returned the case back to the trial court on other grounds…

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