A positive ruling for this father whose legal battles are not yet over:
When is a biological father not a father?
A Circuit Court judge, citing state law, ruled early last year that an unmarried man who donated sperm to his longtime girlfriend had no parental rights after the couple split. The father, Billy Breit of Virginia Beach, hasn’t seen his daughter in 16 months. But the Virginia Court of Appeals, in the first case of its kind in the state, last week overturned the lower court’s decision, calling it “a manifest absurdity.”
Breit, a local attorney, had a long-term, live-in relationship with Beverley Mason that yielded a daughter through in vitro fertilization using his sperm. Before the birth, the couple signed a written joint custody and visitation agreement in case they parted ways. In July 2009, on the day after the birth of their daughter, Lillian Fay, the couple signed an “Acknowledgment of Paternity,” a sworn affidavit naming Breit as the biological father. His name was put on the birth certificate, and they sent birth announcements to family and friends. They also agreed that Lillian Fay would have the hyphenated last name of Mason-Breit.
About four months later, the couple split. The details were not made public, but Mason, according to court filings, agreed to let Breit have visitation. That lasted about nine months, until, according to Breit, Mason abruptly stopped allowing the visits. He said that to this day he hasn’t been given a reason. “We all would like to know the answer to that question,” Breit said during a phone interview. Mason declined to comment for this story except to say she would prefer to keep the matter private for the sake of the child.
Her attorneys issued a similar statement. “It is customary not to comment on ongoing litigation, in the trial or appellate stages, especially given the personal nature of this case,” attorney Andrew Richmond of the Virginia Beach firm Poole Mahoney said in an email. “As this case involves a minor, I would hope heightened respect would be given to the child’s privacy.”
Breit fought the matter, first in Juvenile and Domestic Relations Court, where he lost, and again in Circuit Court. Because he is an active practicing attorney in Virginia Beach, the judges all recused themselves. Retired Richmond Circuit Judge Ted Markow was brought in to hear the case.
In arguing that Breit was not the child’s legal father, Mason’s attorneys cited a section of state law that says “donors of sperm or ova shall not have any parental rights or duties for any child,” and another section that states a “donor is not the parent of a child conceived through assisted conception unless the donor is the husband of the gestational mother.”
Breit’s lawyers and a legal analyst said those sections of law were meant to prohibit anonymous sperm or egg donors from making claims for parentage. And perhaps, they say, it harkens back to a time when certain legislators wanted only married couples to be parents. “The judge says that if you’re not married you may not be the father, even though it’s your DNA,” said L. Steven Emmert, a Virginia Beach lawyer who blogs about appellate cases. “It would mean that somebody who is not married but who is in an active relationship could never prove that he is the father. They would have to be married.”
But the General Assembly didn’t intend that when it passed the sperm/egg donor law about 20 years ago, Emmert and others said. It also created another law that says a father can establish his rights as a parent through a “voluntary written statement” between the father and mother acknowledging paternity. Markow, in his Circuit Court opinion, said that part of the law is trumped by the first statutes, despite his belief that Breit makes “a strong argument.”
Breit’s attorney Kevin Martingayle said Markow’s decision creates “a very frightening situation.” The ruling, he said, would mean “that any unmarried couple that engaged in any form of assisted conception would be participating in an activity where the father could one day be declared to have absolutely no parental rights.”
A three-judge panel of the Court of Appeals overturned Markow’s decision, calling it a “manifest absurdity” that “ignores the intent of the legislature.” The judges ordered the case returned to Virginia Beach to be heard by a different judge.
Breit still doesn’t know when he will be able to see his daughter. Mason has several options now. She can ask for a rehearing by the panel or by the full Court of Appeals or she can take the case to the Virginia Supreme Court. Breit is hopeful she will let the case return to Virginia Beach so they can work out an amicable solution.
“I’m totally elated that I get to see my daughter and have a normal relationship with her. I’m very excited to see her and be her father,” he said by phone from California, where he was spending the holidays. “I’m grateful to the courts for doing the right thing,” he said. “I have a sense that the system works, but it’s taken way too long.”