For at least two decades, the California family code stated that sperm donors were not to be considered the fathers of the children they helped conceive. That was supposed to protect both the men donating sperm — often anonymously and for money — and the women who used it to get pregnant but who didn't want the donor involved in the child's life. Two years ago, the code was amended to allow an exception when the donor and the woman had a written agreement to the contrary, signed before conception.
But the law hasn't kept pace with advances in assisted reproductive technology and changes in the public's perception of what constitutes a family. Today, families are defined more broadly, and a man is more likely to donate sperm to, say, a friend or an unmarried girlfriend who is trying to get pregnant through artificial insemination — and he is more likely to maintain a relationship with a child who is subsequently born.
A bill passed by the state Senate and awaiting action in the Assembly would smartly update the family code by giving some sperm donors legal recourse to argue for parental rights in cases in which the mother at first agrees and then changes her mind. SB 115, introduced by Sen. Jerry Hill (D-San Mateo), would allow a donor who has already acted as a parent and helped care for the child — with the mother's previous consent — to be considered the child's legal father.
Under the proposal, a sperm donor who has never acted as a parent to the child would not be vulnerable to a paternity suit. Nor would he be able to claim paternity later if he wasn't involved from the beginning. The burden would still be on a sperm donor father to prove to a court that he had acted as a parent. In the California code, a man acts as a father when he "receives the child into his home and openly holds the child out as his natural child." And if the donor is declared to be a legal parent, he would also assume the responsibilities of fatherhood, such as child support.
The bill won't resolve all the complex questions involving custody and relationships. And it could leave the door open for a mother to take a sperm donor to court and argue that he had already acted as a father, helped care for the child and should be liable for child support. But she would have the burden of proving it.
Given the various situations in which men donate sperm to women, a legal contract is a good idea. But with or without agreements, people sometimes end up parenting in ways that they didn't foresee. This bill just gives sperm donor fathers who have acted as parents their day in court.
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