Could a California bill make going from sperm donor to father as easy as filling out a form? Not so fast.


Actor JasonPatric, right, and his attorney Fred Silberberg speak to the media after a custody hearing in Los Angeles on May 8. Patric and ex-girlfriend Danielle Schreiber conceived a child by in-vitro fertilization, and Patric seeks recognition as the boy’s father. (Jonathan Alcorn/Reuters)

California legislators are hoping to make resolving the tricky issue of parental rights as easy as filling out a form.

Want to make sure a sperm donor can’t claim to be a father? Check here. And vice versa. Or at least that’s the hope of the “Modern Family Act.”

But can you really check a box to sign away your rights to a child? Perhaps, but it’s probably not going to be that easy.

These days, the increasing prevalence of sperm donors, egg donors and even surrogate mothers often result in thorny legal battles over who is really the parent.

The bill, introduced by San Francisco Assemblyman Tom Ammiano (D), was inspired in part by the high-profile legal battle involving “Lost Boys” actor Jason Patric, who helped a former girlfriend have a child through artificial insemination, using his sperm.

The problems is: Patric claims to have developed a father-like relationship with the boy, and he wants parental rights to the child. Last week, a California appeals court upheld his ability to claim those rights.

The bad news for people like Patric’s former girlfriend, Danielle Schreiber, is that California’s new proposed law might not actually have changed the outcome of this case, according to Georgetown Law Professor Jeffrey Shulman.

“The bottom line is that a written agreement still may not work if the sperm donor is encouraged to form a parent-like relationship with the child,” Shulman said. “There are constitutional law issues, federal constitutional law issues and a line of cases that grant biological fathers right to their children if they have acted like fathers.”

Carlos Alcala, a spokesman for Ammiano, says that the bill isn’t intended to resolve all parental rights questions, but it might prevent some painful legal battles in many cases.

So how afraid should you really be about going the sperm- or egg-donor route?

The Patric case, along with others like a bizarre circumstance involving a sperm donor in Kansas who was ordered to pay child support for a child produced from sperm he donated to a lesbian couple, raise head scratching legal and ethical questions.

Is the law consistent at all about how it decides who has parental rights?

There are, in fact, a patchwork of procedures and laws across the country, Shulman said, but in general, a good way to avoid some sort of donor reappearing mysteriously in your child’s life (or to avoid being liable for child support), is to follow these two steps:

  1. Sign paperwork that makes it clear who the parents are.
  2. Never allow biological parents to develop “parent-like” relationships with the child

It might sound harsh, but according to Shulman, California’s bill — if it becomes law — won’t be enough to ensure that parental rights are clear. And that goes for open adoptions too.

The Kansas sperm donor’s order to pay child support probably wouldn’t hold up against constitutional scrutiny, because he never established a relationship with the child, according to Shulman.

“In the law there’s this concept called ‘psychological parenthood,’ where someone establishes, or earns parental rights by establishing a parent-like relationship with a child,” Shulman said. “There are multiple ways in the law to establish parenthood and it may be difficult for states to figure out ways to simplify it.

“It might raise the bar to showing that you have that kind of relationship, but I don’t think it’s going to be a consistent standard for these kinds of cases.”

The California Senate will is now take up consideration of the bill, potentially in June, according to spokesman Carlos Alcala.

“We don’t see this as a very controversial bill, and those are the ones we’d like to take care of first,” he added.

Abby Phillip is a general assignment national reporter for the Washington Post. She can be reached at abby.phillip@washpost.com. On Twitter: @abbydphillip
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