“Family Law Corner” By: Meldie Moore

Originally Published in Orange County Lawyer, September 2013 (Vol. 55 No. 9)

Vince Vaughan stars in a new comedy being released in November called The Delivery Man. Vaughan plays a character (David Wozniak) who anonymously donated sperm twenty years earlier. !e sperm bank made a mistake, and his sperm was used to conceive 533 children. Thrown into a whirlwind of emotion and uncertainty, Wozniak decides to surreptitiously seek out his children. In the process, he establishes relationships with many of them. Wozniak discovers his true purpose in life is to be a father.

Would Wozniak be able to fille a paternity action in California to establish parentage for any of these children? According to a recent decision by a Los Angeles court: no. The court found a sperm donor does not have standing to file a paternity action.  See Patrick McGreevy, Jason Patric Custody Case Inspires Sperm-Donor-Rights Legislation, LA Times (July 6, 2013), http://articles.latimes.com/2013/jul/06/local/la-me-sperm-donor-20130707

Three laws came into play in the decision.

First, Family Code section 7613 provides:

The donor of semen to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination

or in vitro of a woman other than the donor’s wife is treated in law as if he were not the natural father . . . unless

otherwise agreed to in writing . . . prior to the conception.  Cal. Fam. Code § 7613(d) (Deering 2013).

The law is intended to protect sperm donors from parental obligations, like child support, while protecting the women conceiving through sperm donations from donors’ later seeking to assert parental rights. Subdivision (a) establishes the husband of the woman receiving the donation with his consent is considered the natural father.

Second, Family Code section 7611 establishes the conditions under which a presumption of paternity occurs.  A man is the presumed father, even if he is not the biological father, when a child is born during, or within 300 days of, a marriage or attempted marriage, is consensually named on the birth certificate as the father, has agreed or been ordered to

support the child, or under subdivision (d), where he received the child into his home and openly holds out the child as his natural child.” Cal. Fam. Code § 7611(d) (Deering 2013).

Third, section 7630 delineates who may bring a paternity action. Subdivision (a) gives this right specifically to a child, the child’s mother, a presumed father, an adoption agency, or an adoptive parent. Subdivision (b) of section 7630 states that “any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father-and-child relationship presumed under subdivision (d) [receiving and holding out provision] . . . of section 7611.” Cal. Fam. Code § 7630(b) (Deering 2013) (parenthetical added).

A recent high-profile case brought to light the apparent conflict between the laws. Jason Patric, an actor notably remembered for The Lost Boys in 1987, “led a paternity action for his biological three-year-old son, Gus, in 2012. The family court held Patric did not have standing because of his status as a sperm donor. See Patrick McGreevy, Jason Patric Custody Case Inspires Sperm-Donor-Rights Legislation, LA Times (July 6, 2013), supra. Patric has appealed.