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Unmarried Sperm Provider Has Constitutional Right To Assert Parental Rights

A fascinating and progressive decision out of the Virginia Supreme Court which disregarded the marital status of the litigants and instead concluded that the rights of a child to have two parents is more important than the state’s policy to promote marriage:

A Virginia law concerning sperm donation was not intended to deny parental rights to a man who conceived a daughter with his girlfriend through in-vitro fertilization, the state Supreme Court ruled Thursday. The court ruled that the law, which says unmarried sperm donors have no parental rights, had been intended to ensure married couples could seek a sperm donor without fearing the donor would claim parental rights.

The decision was a victory for Virginia Beach attorney William D. Breit, who is seeking enforcement of a custody and visitation agreement he and his former girlfriend signed shortly after the birth of a daughter who was conceived through in-vitro fertilization. The couple signed the agreement as well as an affidavit establishing Breit as the biological father.

Breit and Beverly Mason split up four months after the birth. Court papers say Mason, invoking laws that say unmarried sperm donors have no parental rights, cut off Breit’s contact with the child nine months later. Two lower courts sided with Mason, but the Virginia Court of Appeals and now the Supreme Court ruled against her.

“We’re thrilled with the opinion of the Virginia Supreme Court, and we are cautiously optimistic that this will lead to cooperation the part of the mother,” said Breit’s attorney, Kevin Martingayle. “This has been a nightmare for Mr. Breit. This unanimous opinion ought to end this nightmare.” Mason’s attorney, Frank Friedman, said he was still assessing the opinion and weighing his options. “We’re all very disappointed, obviously,” he said.

In court, Mason cited a law that says a “donor is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational father.” However, another provision says a parent-child relationship may be established by “a voluntarily written statement of the father and mother made under oath acknowledging paternity.” The justices said that when the statutes are read together, it’s clear that Breit can assert his parental rights.

The court also said Breit has a fundamental constitutional right to be involved in his child’s upbringing. “Simply put, there is no compelling reason why a responsible, involved, unmarried, biological parent should never be allowed to establish legal parentage of her or his child born as a result of assisted conception,” Justice William C. Mims wrote.

Martingayle said Breit has not seen his daughter, now 3, since she was 13 months old. Barring further appeal, the case now goes back to the lower court for proceedings consistent with the Supreme Court’s opinion. “The time has clearly come for everyone to get past the legal fighting and move forward in a positive direction for the benefit of the little girl,” he said.

Reeves Mahoney, another lawyer for Mason, said his client was trying to work out a suitable arrangement when Breit initially took the matter to court. “This litigation was not necessary,” he said. “It happened, though. The Supreme Court has spoken, and everyone’s focus should be on the child’s best interests.”

This was clearly the correct decision as Mr. Breit never intended to be a sperm donor, distinguishing this case from the Kansas decision we blogged about last week. It also should serve as a clarion call to all states to revisit their sperm donor statutes and eliminate the antiquated requirement that the parties be married. The Virginia Supreme Court distilled this issue to its fundamental essence, “Virginia’s marital preference in assisted conception protects an intact family from intervention from third-party strangers, but it was not intended to deprive a child of a responsible, involved parent.” This case also serves as an important reminder that competent legal counsel be retained before proceeding with any assisted reproduction arrangement.


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