Virginia Lawyers Weekly VA Lawyers Weekly
A man who fathered a child with his girlfriend through in vitro fertilization can seek visitation denied by the mother, the Supreme Court of Virginia said on Jan. 10.
Although a Virginia statute declares that a sperm “donor” can only count as the father of a child born through assisted conception if he is married to the mother, that statute has to be read with provisions that sanction establishing parentage through other means, such as genetic testing, the court said.
In this case, the father, Virginia Beach lawyer William D. Breit, took several steps before and after the child’s 2009 birth to secure his parental rights.
The couple signed a written custody and visitation agreement before the child was born, listed Breit as the father on the birth certificate and executed a post-birth “Acknowledgement of Paternity” identifying Breit as the child’s legal and biological father.
The parties also held themselves out socially as parents by giving the child a hyphenated last name including both their surnames and sending out joint birth announcements listing both as the parents. They told family and friends Breit was the father and continued to live together for four months after the child’s birth. Breit continued to visit the child until the mother cut off all contact when the child was a year old.
The mother, Beverly Mason, argued that the assisted conception statute, Virginia Code § 20-156, prevents all unmarried sperm donors from asserting parental rights, regardless of the relationship the donor has with the mother.
But the mother was ignoring an important part of the assisted conception statute, according to the court’s unanimous opinion by Justice William C. Mims, in which it allows for another Code section, Chapter 3.1, to kick in. Code § 20-164 says, “when applicable,” the assisted conception statute should be read together with Code § 20-49.1, in the circumstances presented by the Breit case.
The father is not barred from asserting parental rights, the high court said in L.F., a Minor v. Breit (VLW 013-6-001), upholding a December 2011 decision by the Virginia Court of Appeals.
The Supreme Court agreed with the mother that Virginia statutes would not allow biological testing alone to trump the assisted conception statute, which was enacted to prevent a mother from forcing a sperm donor to pay child support or a donor to establish parentage over a mother’s objection, based solely on testing.
A “sperm donor aided only by the results of genetic testing may not establish parentage,” Mims wrote.
But the assisted conception statute simply does not apply to cases like Breit, in which “unmarried donors have long-term relationships as well as biological ties that have been voluntarily acknowledged in writing pursuant to Code § 20-49.1(B)(2), and have voluntarily assumed responsibilities to their children.”
Breit simply did not qualify as the kind of “third-party intruder” covered by the assisted conception statute.
Mims also rejected Breit’s suggestion that the statute treated unmarried male donors differently from unmarried female donors, and treated unmarried donors differently from married donors, in violation of the Equal Protection Clause.
It is true, Mims wrote, that an unmarried female egg donor who is also the gestational mother may be considered a parent; however, “the fact that a male is unable to be the gestational carrier of the fertilized ovum is the result of biology, not discrimination.”
And the commonwealth’s interest in promoting marriage allowed for distinctions based on marital status, the opinion said.
On the other hand, applying the challenged statute without reference to Code § 20-49.1-(B)(2) would unconstitutionally infringe on Breit’s fundamental parental rights, the court said.
