The rise in the number in-vitro fertilization lead California to amend its Family Code in 1988 to clarify the legal status of sperm donors for in-vitro fertilization. The Legislature enacted the Uniform Parentage Act that included what is now California’s Family Code section 7613. This law stated that a sperm donor that provided his semen to a licensed doctor or fertility specialist or sperm bank will not be considered the child’s natural father unless he is married to the woman impregnated. The purpose of this law was to ensure that the mother would not have to confront a paternity suit from the sperm donor and the donor would not be faced with child support payments. Yet the law did not clarify the rights of a father who cohabitates with the mother but is not married to her when they conceive a child through in-vitro fertilization.
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In 2005, the Second District Court of Appeal held in Steven S. v. Deborah D. (2005) that a sperm donor to a licensed physician cannot legally establish parentage even if he cohabitated or had an sexual relationship with the mother. The Court was categorical in asserting that “[t]here 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.” In Jason P. v. Danielle S., the Second Appellate District Court acknowledged that it should not have been so doctrinaire and remanded the case to the trial court to determine if the plaintiff could establish parentage. It further stated that a sperm donor may establish parentage through post-birth conduct.
Jason P.’s and Danielle S.’s relationship is fairly complicated. In 2006, Jason P. and Danielle S. began trying to conceive naturally. Although Danielle S. became pregnant in December of 2006, she was not able to take the baby to term. The couple began trying to use fertility treatments to increase Danielle’s chances of conception. In October 2007, Jason P. was told that the problem conceiving may be due to his low sperm count and so he had surgery to correct that. The couple also started to look at in-vitro fertilization. In May 2008, Danielle moved out of Jason’s home to a home nearby. Danielle also indicated that she wanted to become a mother without Jason or any other man acting as the father. A month after she moved, Danielle purchased an anonymous donor’s sperm from a sperm bank. In September 2008, Danielle moved back in with Jason while her home was remodeled. In late 2008 or early 2009, Jason gave Danielle a letter indicating that he was not ready to be a father, but she can use his sperm as long as she did not reveal the source of the sperm. Danielle decided to use Jason’s sperm and in March 2009 she was inseminated through an in-vitro fertilization process with Jason’s sperm. On the informed consent forms, she indicated that Jason was the father.
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In December 2009, Gus was born. Jason maintained a relationship with Gus for the next two and a half years. Jason presented evidence at trial demonstrating that Gus referred to Jason as “dada” and that Danielle referred to Jason as “dada” in Gus’ presence. When Jason moved to the east coast for 6 months, Danielle and Gus made several trips to see him and Jason spoke with Gus on Skype. Jason continued his relationship with Gus until Danielle ended it when she also ended the relationship between Jason and her.
The Second Appellate District viewed Section 7613 with regards to the facts laid out above and held that it is not a complete bar to all claims of paternity, but only ones based on biological connection between father and child. The Court stated that its opinion in Steven S. only precluded granting paternity to a man based solely on his sperm donation and the biological connection to the child. Jason P. has based his claims of paternity on several factors, including the constitutionality of the statute and his post-birth conduct with the child. The Court therefore held that Jason could establish his paternity if he based his claims not on his providing sperm but on other factors such as his post-birth conduct. The Court therefore remanded the case to the trial court to determine if Jason could establish his parentage through means other than those disallowed by Section 7613.