kalvan said:
What is the name of your state? California
Here are the facts in the order they happened:
I had a vasectomy and am unable to have kids (easily).
My girlfriend's is 40 and wants kids ASAP.
Rather than break up, I encourage her to find a sperm donor.
She finds a friend (acquaintance, no prior relationship together) willing to donate sperm and impregnates herself with a "turkey baster". There is no legal agreement.
She learns she is pregnant.
We get married and buy a home.
Sperm donor decides he wants custody and sues.
She has the baby. I am listed as father on birth certificate.
We are happily married and raising the baby (now 2.5 months old).
Sperm donor was allowed a couple of brief visits in the hospital, but otherwise we have had no contact with him.
From brief conversations with him it seems peaceful resolution is highly unlikely.
Who has the better case for custody: husband or sperm donor?
Interesting question
Most likely he would not have any legal claim for several reasons, but since no doctor or sperm bank was involved, the presumptions re paternity and rights are not automatic, nor would there be paternity fraud if in fact the donor knew his sperm was being used for AI with your knowledge and consent, thus he would be estopped from any claim due to CA EC 623 without a signed contract, although such a claim might be contested insofar as the interest of public policy. Furthermore in California you have only two years after a birth in which to deny paternity. So, if your marriage were to fail in the future, you would still be responsible for child support even though you believe this is not your child because you had a Vasectomy. This friend should also understand that ascerting claims of paternity may result in a judgement of child support. Here is a link with some references to this instance
http://www.familylawsource.com/Law/Paternity.htm
Here are the sections of CA codes with reference to paternity.
http://www.leginfo.ca.gov/
1. FAMILY.CODE SECTION 7570-7577
3. FAMILY.CODE SECTION 17400-17434
4. FAMILY.CODE SECTION 7645-7649.5
5. FAMILY.CODE SECTION 17600-17604
6. FAMILY.CODE SECTION 7630-7644
7. WELFARE AND INSTITUTIONS CODE SECTION 11475.2-11487.5
8. FAMILY.CODE SECTION 7540-7541
9. PROBATE CODE SECTION 6450-6455
10. HEALTH AND SAFETY CODE SECTION 102766-102769
11. WELFARE AND INSTITUTIONS CODE SECTION 305-324.5
12. CODE OF CIVIL PROCEDURE SECTION 2032.010-2032.020
13. CODE OF CIVIL PROCEDURE SECTION 452-465
14. FAMILY.CODE SECTION 17200-17212
15. FAMILY.CODE SECTION 17300-17320
16. FAMILY.CODE SECTION 2330-2348
17. FAMILY.CODE SECTION 3140
18. FAMILY.CODE SECTION 6320-6327
19. HEALTH AND SAFETY CODE SECTION 102750-102765
20. WELFARE AND INSTITUTIONS CODE SECTION 360-370
Furthermore, since you were married at the time of the child's birth, your name goes on the birth certificate and there is no need to sign an acknowledgement of paternity, only you and your wife at this point in time have any standing to establish and/or disestablish paternity.
http://subscript.bna.com/SAMPLES/flr.nsf/0/5ff23d02a5a8be6185256fc5007c5362?OpenDocument
Volume 31 Number 19
Tuesday, March 15, 2005
Page 1220
ISSN 1522-4309
Court Decisions
Assisted Conception--Paternity
No Paternity Order for Sperm Donor
Who Also Had Sex With Mother
A man whose donated sperm was used to artificially inseminate a female acquaintance who had failed to conceive when they engaged in sexual intercourse should not have been declared the father of the resulting child, the California Court of Appeal, Second District, held Mar. 3. The court explained that because the parties used the services of a licensed physician for the insemination procedure, the state Parentage Act provision that bars a finding of paternity where semen is provided to a licensed physician for the artificial insemination of an unmarried woman controls (Steven S. v. Deborah D., Cal. Ct. App., No. B175996, 3/3/05).
The parties, who are not and never were married to each other, agreed that the man would provide semen to a physician to artificially inseminate the woman; she became pregnant from the artificial insemination, but the pregnancy did not last full term. (The man was married to another woman at the time of donating the sperm.) The parties then had sexual intercourse over a period of months, which did not result in a pregnancy. Shortly after terminating the sexual relationship, the woman again sought to conceive through artificial insemination in 1999, utilizing semen the man had originally provided for that purpose; she became pregnant and gave birth to the child at issue.
When the child was three years old, the man petitioned to establish a parental relationship with the boy. In contesting the petition, the woman cited the state Uniform Parentage Act, Cal. Fam. Code § 7613(b), which provides that: "The donor of semen provided to a licensed physician and surgeon for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived."
The trial court held that she was estopped from relying on § 7613(b), and that public policy required that the provision not be applied. In recognizing the man as the child's natural father, the court pointed to the following facts: the man had accompanied the woman to, and held her hand throughout, the 1999 insemination procedure; when the woman discovered she was pregnant the man attended her first ultrasound; the parties attended a joint therapy session to discuss issues relating to their child; when the child was born the woman called the man and exclaimed "Congratulations! You're a father," he announced to his co-workers that he had a son, and went to the hospital; the man's surname is used as the child's middle name; after the child's birth the woman invited the man to participate in an infant CPR class at her home; and the child refers to the man as "Daddy Steve."
The trial court further found that the woman's conduct clearly reflected that she intended the man to be a part of the child's life and that he relied on that conduct in agreeing to father the child--"often traveling thousands of miles to attempt conception with [the woman]." In addition, the court stressed that to find that the man is not the father would deny the child the emotional and financial support a second parent can provide, and that "where the parties actively tried to conceive a child over a period of months" it would be inappropriate not to conclude that the man was the father. Finally, the court said that public policy favored a finding of paternity and requiring the man to assume his child support obligation. The woman appealed.
Public Policy
Reversing, Judge James Gary Hastings pointed out that each element of § 7613(b) was satisfied in this case and that nothing in the statute precluded its application to these facts. Acknowledging that lawmakers had expressly declared the state's compelling interest in establishing paternity for all children, he pointed out that the legislature had also established the public policy with regard to the rights of sperm donors, by affording unmarried women a statutory right to bear children by artificial insemination (as well affording men a right to donate semen) without fear of a paternity claim, through provision of semen to a licensed physician.
In rejecting the man's argument that the court should look beyond the words of the statute to find legislative intent for a public policy favoring a finding of paternity, where the mother was in an intimate relationship with a known donor and also attempted to conceive naturally, albeit unsuccessfully, Hastings explained that "that is not our role, given the clear language of section 7613, subdivision (b)."
Clear Intent
"There can be no paternity claim from a sperm donor who is not married to the woman who becomes pregnant with the donated sperm," Hastings asserted, "so long as it was provided to a licensed physician." Stressing that the "statute does not make an exception for known sperm donors," he said that such donors will be denied a paternity claim so long as the semen was provided to a licensed physician for insemination in an unmarried woman. "And there is no indication that the Legislature intended to establish a public policy against donating sperm for use by a woman who is not the donor's wife, even when there is an intimate relationship," he added.
Also resisting the man's request that the court "fill in the blanks" left by the legislature (which he argued could not have anticipated that a sperm donor might be the intimate friend and sexual partner of a mother), Hastings expressed doubt that lawmakers did not anticipate a close relationship between donor and mother, noting that the first reported artificial insemination occurred in 1799, and that the procedure was widely practiced by the 1930s and 1940s.
"Further, it is presumed that the Legislature knows how to create an exception to the provisions of a statute, and that where it does not create an exception, it is presumed that it did not intend to do so," Hastings continued. If lawmakers deemed it appropriate to exempt men who donate sperm through a licensed physician for use by their unmarried sexual partners, it would have done so, he said.
Marjorie G. Fuller, Fullerton, Cal., appeared for the woman. The man was represented by Kenneth R. Nahigian, Woodland Hills, Cal.
Full text at
http://pub.bna.com/fl/175996.pdf
