Sperm Donor’s Intimacy With Mother Does Not Make Him Father

Monday, March 5, 2005

Page 1

Court of Appeal Rules:

Sperm Donor’s Intimacy With Mother Does Not Make Him Father

By KENNETH OFGANG, Staff Writer/Appellate Courts

A statute providing that a man who donates semen for purposes of physician-assisted artificial insemination—of a woman not his wife—is not the child’s father is not subject to an exception for a donor who was in an intimate relationship with the mother, this district’s Court of Appeal has ruled yesterday.

Los Angeles Superior Court Judge Richard Denner erred in granting relief to Steven S., as he was identified in the opinion, on his complaint to be declared the father of Trevor, now five years old and the daughter of Deborah D, Div. Four held Thursday.

Steven S., who was married to someone else, and Deborah D., who was divorced, had an ongoing relationship for several months. Testimony at the trial showed that Steven S. provided semen to a physician so that Deborah D. could be artificially inseminated, but the resulting pregnancy did not last full term; that the couple had sexual relations for several months thereafter before making another attempt at artificial insemination; and that Deborah D. eventually became pregnant with Trevor.

Denner found that the pregnancy was a result of artificial insemination rather than intercourse. But he also ruled that Deborah D. was estopped to deny her ex-lover’s paternity under Family Code Sec. 7613(b).

The trial judge reasoned that the mother’s rejection of Steven S.’s bid for legal fatherhood was inconsistent with her conduct. He noted that the couple had attended Trevor’s ultrasound together, that the mother had called Steven S. when Trevor was born to tell him “Congratulations, you’re a father!” and that Steven S. had gone to the hospital that day, that Trevor called him “Daddy Steve,” and the mother had invited him to participate in an infant CPR class at her home.

Allowing the mother to invoke the Family Code provision, Denner said, would be inconsistent with the public policy which favors giving a child “the emotional and financial support a second parent can provide.”

But Justice J. Gary Hastings, writing for the Court of Appeal, said the overriding public policy was that set forth in the statute. “It is for the Legislature, not the courts, to choose between conflicting public policies,” the justice said.

The Legislature, he explained, had expressed its intent that women be given the opportunity to conceive through physician-assisted artificial insemination without fear of paternity claims. Even if, as the plaintiff contended, the Legislature did not consider the possibility that the donor might also have an intimate relationship with the mother, it is up to lawmakers to revisit the issue, it is not for the courts to “fill in the blanks,” Hastings declared.

Attorneys on appeal were Kenneth R. Nahigian of Woodland Hills for Steven S. and Marjorie G. Fuller of Fullerton.

The case is Steven S. v. Deborah D., 05 S.O.S. 1223.