Does ‘Sperm Donor’ Mean ‘Dad’?

The Jason-Patric-assisted-reproduction story has been in the news, and earlier this week, the New York Times did a lengthy story on it.

The actor Jason Patric dated Danielle Schreiber on and off for many years. During a time when they were “off” but friendly, they agreed to use his sperm so that she could have a child, Gus. After Gus was born, they reconciled, and then eventually broke up when Gus was about two years old. Jason sued for custody, while Danielle claimed he was merely a sperm donor with no parental rights.

In a similar Texas case, In re Sullivan, an unmarried man and woman agreed to conceive a child through assisted reproduction, and signed a “co-parenting agreement.”  When the man later tried to claim parental rights, the woman moved to dismiss his case because a donor is not a parent under Texas law. 

Normally, under Texas law, a donor has no parental rights:

Sec. 160.102(6) “Donor” means an individual who provides eggs or sperm to a licensed physician to be used for assisted reproduction, regardless of whether the eggs or sperm are provided for consideration. The term does not include:
(A) a husband who provides sperm or a wife who provides eggs to be used for assisted reproduction by the wife;
(B) a woman who gives birth to a child by means of assisted reproduction; or
(C) an unmarried man who, with the intent to be the father of the resulting child, provides sperm to be used for assisted reproduction by an unmarried woman, as provided by Section 160.7031.

Sec. 160.702. PARENTAL STATUS OF DONOR.
A donor is not a parent of a child conceived by means of assisted reproduction.

The Sullivan court held that the man’s status as a donor does not automatically deny him the opportunity to seek paternity, if he has another basis for it beyond the mere donation.  Further, in 2007, the Texas Legislature amended the law to allow a sperm donor who had a relationship with the mother to make a claim for paternity in some cases.  The relevant portion of the Texas Family Code states:

Sec. 160.7031. UNMARRIED MAN’S PATERNITY OF CHILD OF ASSISTED REPRODUCTION.
(a) If an unmarried man, with the intent to be the father of a resulting child, provides sperm to a licensed physician and consents to the use of that sperm for assisted reproduction by an unmarried woman, he is the father of a resulting child.
(b) Consent by an unmarried man who intends to be the father of a resulting child in accordance with this section must be in a record signed by the man and the unmarried woman and kept by a licensed physician.

If the Jason Patric case were in Texas, Jason would be able to pursue a case claiming that he had the intent to be the father of the resulting child and that Danielle, by her actions, consented to it.  Subsection (b) seems to require that both Jason and Danielle would have had to sign a form at the physician’s office to designate him as a man with the intent to be a father. However, that provision was really designed to prevent the father from changing his mind and later denying paternity.

Jason lost at the trial court level, and is now in the process of appealing his paternity claim to the California appellate court.

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Emily Miskel

Judge Emily Miskel was appointed by Texas Governor Greg Abbott as the first judge of the 470th family district court of Collin County, Texas. She graduated from Stanford University and Harvard Law School and she is board certified in family law by the Texas Board of Legal Specialization. Find Emily on Google+, Facebook, and other social media.

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