A celebrity custody battle making headlines isn't all that unusual. But the case of actor Jason Patric's claim to fatherhood gives us more than tabloid fodder, because it could have far-reaching implications in terms of our understanding of when a sperm donor may also be a parent.
Jason Patric donated sperm to his on-again, off-again girlfriend, Danielle Schreiber, to be used for IVF. Although the details are a bit fuzzy, it seems that there was a clear intention early on that Patric's role would be limited to that of a sperm donor and not a parent of the child. However, it also seems that once the baby, Gus, was born in 2009, Patric stepped into a parental role for a couple of years (ostensibly with Schreiber's blessing), until a falling out between Schreiber and Patric led her to deny him access to the boy.
Patric turned to the court for help, arguing that he is a parent to the child. Schreiber responded by arguing that under California law, Patric is not a parent but only a donor and therefore without rights to the child. At first instance, the court held in Schreiber's favour, in February 2013, finding that Patric is a sperm donor only and not a legal parent. The court relied on a statute that specifically states that where a sperm donor is not a spouse of the woman using the sperm, without a preconception written agreement to the contrary, a donor is not a parent. Patric successfully appealed, and this appeal was recently upheld by the California Supreme Court. Even though Patric's and Schreiber's original intention may have been for him to only play the role of donor, this decision demonstrates that a sperm donor can become something more based on post-birth behaviour.
People who are unfamiliar with the specific details of the case, or at least with the court's findings of fact, may see this case as cause for concern as it appears to provide donors with parental rights. Of course, many of us, myself included, think it is good policy for donors, parents and donor-conceived children that the law clearly indicate that a donor is not a parent, without something more. This case, though, is all about that something more. The determination that Patric may be a parent of the child has nothing to do with his genetic connection to the boy, but is all about the role he played in the child's life (including holding himself out as a parent and welcoming the boy into his home). Arguably, the same finding could be reached even if Patric had no genetic connection to the child.
To be clear, Patric's legal battle is far from over; he now must stand trial and prove to the court that his post-birth behaviour with Gus is sufficient to meet the threshold of a parent. It is also important to note that the California Supreme Court's 45-page decision is sealed. We can only make educated guesses as to what it says. Regardless, one shouldn't underestimate the importance of this decision.
For Canadians, our provincial courts are not bound to follow California decisions in determining legal parentage. However, this case may serve as an example of how Canadian courts may decide similar situations in the future closer to home. In particular, this decision is in line with what I expect to see coming out of Alberta and British Columbia courts. Over the past couple of years, both of these provinces updated their provincial family law statutes to clarify that a donor is not a parent only by virtue of his or her genetic connection to the child; something more must exist to move a donor into the realm of parent. The Patric/Schreiber case (and the court's future findings) is a particularly interesting example because it provides an indication of what post-birth behaviour the court may find constitutes that something more. And, for most other provinces (such as Ontario) that are still without legislation recognizing that a donor is not a parent, even if a court were to uphold a sperm donor agreement, I expect the post-birth behaviour of the parties may be used to overcome any agreement, as Patric successfully argued here.
Where legislation exists specifically acknowledging that a donor isn't a parent, a parent using donor gametes to conceive who does not want interference from the donor should easily enough be able to protect herself against a parental claim, simply by not permitting the donor to play a parental role to the child in the first place. Schreiber, too, could have similarly protected herself against a paternity claim by Patric by not allowing him to play a parental role in the boy's life. By bringing her child into his home, and holding him out as the boy's father, Patric moved from donor to dad. The fact that Gus was conceived through IVF, and that Patric was a sperm donor, is a red herring; the post-birth behaviour of the parties moved this from a sperm donor situation to a more traditional family law dispute
Although this decision is from a jurisdiction outside of Canada, Canadian parents using donor gametes to conceive would be wise to consider the Patric/Schreiber case when determining their conduct after the baby is born. A preconception legal agreement is vital, but so is post-birth behaviour.
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Sara R. Cohen is a fertility lawyer based in Toronto, but with clients throughout the country and abroad. She is the founder of Fertility Law Canada, a partner at D2Law LLP and the author of the award-winning Fertility Law Canada blog. Cohen regularly works with intended parents, gestational surrogates and donors, as well as domestic and international fertility clinics and cryobanks. Cohen is a frequent lecturer about fertility law issues, and a published author. She is an advocate for all parties involved in third-party reproductive technology.