Being a sperm donor does not necessarily foreclose the ability to obtain parental rights under Family Code §7611(d).
Pursuant to Family Code §7613(b)(1), a sperm donor whose donation is provided to a licensed physician and surgeon or a licensed sperm bank for use in assisted reproduction by a woman other than the donor’s spouse is treated in law as if he were not the natural parent of the child conceived unless otherwise agreed in writing between the donor and the woman prior to the conception of the child.
If the donation is not provided to a licensed physician and surgeon or licensed sperm bank, the donor will still be treated in law as if he were not the natural parent of the child if one of the following conditions are met: the donor and the woman agreed in writing prior to conception that the donor would not be a parent, or the court finds by clear and convincing evidence that the child was conceived through assisted reproduction and the donor and the woman had an oral agreement that the donor would not be a parent.
In the case of Steven S. v. Deborah D. (2005) 127 Cal.App.4th 319, the court held “there can be no paternity claim from a sperm donor who is not married to the woman who becomes pregnant with the donated semen, so long as it was provided to a licensed physician.” Such a ruling completing foreclosed unmarried sperm donors from seeking to establish paternity over children conceived through sperm donation, even if those donors were in a relationship with the child’s mother and held that child out as their own.
In 2014, the court acknowledged that the ruling of Steven S. v. Deborah D., was too restrictive. In the case of Jason P. v. Danielle S., (2014) 226 Cal.App.4th 167, the court held that although the father was precluded from establishing paternity under Family Code 7613(b), he was not precluded from establishing presumed parenthood under Family Code §7611(d).
In Jason P., the child in question was conceived through in vitro fertilization using father’s sperm, which had been provided to a licensed fertility clinic. Father was subsequently not listed on the birth certificate, and there was no voluntary declaration of paternity. At the time of the child’s conception, Father had written a letter to Mother informing her that he was not ready to be a father; however, he consented to her using his sperm if she so desired to become a mother.
Despite the fact that father was not listed on the birth certificate nor did he sign a voluntary declaration of paternity, Mother referred to Father as “dada” when speaking to the child, and the child called Father “dada.” When Father was working in New York for six months, Mother and child flew there several times from Los Angeles and stayed with Father at his apartment. Father also communicated with the child via Skype. Father continued to maintain contact with the child until the child was approximately 5 years old, at which time Mother terminated her relationship with Father.
The Court ultimately ruled that Family Code §7613(b) should be interpreted only to preclude a sperm donor from establishing paternity based upon his biological connection to the child, and does not preclude him from establishing that he is a presumed parent under Family Code §7611(d).
Family Code §7611(d) provides that a person is presumed to be the natural parent of a child if the parent receives the child into his or her home and openly holds out the child as his or her natural child.
Ultimately the court found that the Father in Jason P. qualified as a presumed parent pursuant to Family Code §7611(d).