California law protects sperm donors from parental responsibilities, as well as protecting intended parents from a claim of parentage from sperm donors. Family Code §7613(b) provides that the donor of semen provided to a licensed physician or a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman other than his wife won’t held to be the natural father of the child thereby conceived absent written agreement to the contrary.
Even if a licensed physician isn’t involved in the insemination, the donor still won’t be found to be a parent if either (1) the donor and the woman agree in a writing signed before conception that the donor won’t be a parent or (2) a court finds by clear and convincing evidence that the woman and the donor had an oral agreement made before conception that the donor won’t be a parent. Fam C §7613(b)(2).
But the protective statute only applies to establishing paternity based on the donor’s biological connection to the child. It can still be established that he’s a presumed parent under another statute—Fam C §7611(d)—based on his postbirth conduct. Jason P. v Danielle S. (2017) 9 CA5th 1000.
In a recent case, the sperm donor ran right into the intersection of the two statutes: He had his sperm extracted and the mother paid for the insemination, but his actions in the first couple of years of the child’s life, including staying with him and his mother a couple of nights a week, financially helping out the mother, identifying himself as the father to the mother’s friends and family, and allowing the child to call him “daddy,” belied his claim of just being a donor under §7613(b). He was found to be the child’s presumed father under §7611(d) and ordered to pay child support. County of Orange v Cole (2017) 14 CA5th 504.
So what does this mean for sperm donors? In anonymous situations, the donor is likely to be protected by §7613(b). But when an unmarried woman is using a known sperm donor, the parties should enter into a written agreement preconception, specifying that the donor will not be a parent and clearly indicating that the written agreement controls over any conflicting medical forms. And the donor should act in a manner that’s consistent with that agreement, or risk being considered a presumed parent under §7611(d).
For more on parentage determinations, turn to CEB’s Practice Under the California Family Code: Dissolution, Legal Separation, Nullity, chap 8A. On the parent-child relationship as it relates to custody, check out CEB’s California Child Custody Litigation and Practice, chap 2.
Other CEBblog™ posts you may find interesting:
- Preparing for Child Custody Problems
- Thinking Ahead: Pre-Birth Custody and Visitation
- A View from the Family Law Bench, Part 1
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