To enable married couples to become legal parents despite the husband’s impotency, and to obviate the need for a formal adoption, several states have enacted statutes providing that under certain circumstances a child born to a married woman by means of artificial insemination is legally the child of her husband.
Some of these statutes provide that the husband’s consent is all that is required to render a child conceived by heterologous insemination1 legitimate. The Oregon statute, for example, simply declares: “The relationship, rights and obligation between a child born as a result of artificial insemination and the mother’s husband shall be the same … as if the child had been naturally and legitimately conceived … if the husband consented to the performance of artificial insemination.”2
In most states, the husband’s consent is presumed.3
The Uniform Parentage Act (UPA), which has been enacted in a few states, makes parental status a function of both consent and intent. It provides that a man who furnishes sperm or consents to a woman’s artificial insemination with the intent of becoming a parent is a parent.4
Several states require, in addition to consent, that the insemination be performed in a specified way, such as under the direction of a licensed physician. If the couple complies with the statutory conditions, then the presumption of legitimacy is not rebuttable with evidence that a sperm donor is the biological father.5
Courts are split as to the effect of a couple’s or a sperm donor’s failure to comply with statutory conditions. Some courts attempt to give effect to the parties’ intention to bar the donor from asserting parental rights despite their failure to comply with statutory conditions.6 Among these courts, some require substantial compliance with the statutory requirements.7 Other courts disagree, holding that unless there is full and complete compliance with all statutory requirements, the case must be decided on the basis of common law principles without the benefit of the statutory provisions.8 This could include, to the extent applicable in a particular jurisdiction in a particular case, the presumption of legitimacy, the doctrines of equitable estoppel and promissory estoppel, implied child support contracts9 and any common law rulings that may exist in the state concerning the legitimacy of children conceived by artificial insemination with the husband’s consent.
Statutes addressing heterologous insemination typically contain a provision declaring that the sperm donor is not a legal parent of the child under the circumstances set out in the statute.10
This kind of statute may be unconstitutional as applied to sperm donors who contracted with the mother for parental rights prior to the conception of the child.11 Modern statutes, therefore, often contain a proviso that the donor may be the legal parent of the child if the parties so agreed prior to the conception of the child.
In states that have enacted heterologous insemination statutes, then, it is possible that a sperm donor could have standing to ask for custody or visitation rights if the parties agreed that he would retain parental rights, or if the parties have not complied or substantially complied with the requirements of the state’s heterologous insemination statute.12 What rights a court in such a state will grant the donor depend on the circumstances of each case, as the court will grant only such rights as it deems to be in the best interests of the child. The desire of the parents is recognized as an important “best interest” factor in every jurisdiction, though, and the parties’ contract, if any, is good evidence of the parents’ wishes. Thus, even while requiring the donor to pay child support (because waivers of support generally are not enforceable) a court could use the fact that the sperm donor agreed not to seek custody or visitation as evidence that an award of custody or visitation to him is not in the child’s best interests. This would leave the donor in the position of owing a support obligation for a child he cannot visit and as to whose upbringing he has no input. Obviously, sperm donors would be well advised to familiarize themselves with their state’s heterologous insemination statute before proceeding. Husbands would be well advised to do so, too.
The original reason for the enactment of heterologous insemination statutes was to enable married couples with an infertile husband to use sperm from an anonymous donor to conceive a child, without having to go through the process of terminating the donor’s parental rights and the completion of a formal adoption of the child by the husband. Several states, however, have extended the coverage of their statute to single women, too. Statutes in these states may bar a sperm donor from asserting rights to custody or visitation whether the mother is single or married.13
Under state same-sex marriage laws, the lesbian partner of the mother is considered a “husband” for purposes of laws conferring parental rights on the husbands of artificially inseminated women.14 If a lesbian couple has not entered into a legal marriage, the mother’s lesbian partner would not acquire any parental rights under this kind of statute.15
- Heterologous insemination refers to the insemination of a woman using the sperm of a man who is not married to her. Homologous insemination refers to the insemination of a woman using her husband’s semen. The legal effect of homologous insemination is not substantially different from that of insemination by means of regular sexual intercourse. ↩
- OR. REV. CODE § 109.243 (2011) (This provision was enacted into law by the Legislative Assembly but was not added to or made a part of Oregon Revised Statutes chapter 109 by legislative action.) Under a statute of this kind, the insemination need not be performed by or under the direction of a physician. In re Marriage of A.C.H. & D.R.H., 210 P.3d 929 (Or. Ct. App. 2009) ↩
- The presumption of consent is distinct from the presumption of legitimacy. Even if the presumption of consent is rebutted, it may still be necessary to present evidence to rebut the presumption that the husband is the father of any child born or conceived during the marriage. ↩
- UNIF. PARENTAGE ACT § 703 (2002) ↩
- See, e.g., CAL. FAM. CODE § 7613(a) (2012), which provides:
If, under the supervision of a licensed physician and surgeon and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband’s consent must be in writing and signed by him and his wife. The physician and surgeon shall certify their signatures and the date of the insemination, and retain the husband’s consent as part of the medical record, where it shall be kept confidential and in a sealed file. However, the physician and surgeon’s failure to do so does not affect the father and child relationship…. ↩
- See, e.g., Laura G. v. Peter G., 830 N.Y.S.2d 496 (Sup. Ct. 2007) (holding that the husband is the legal father even though his consent was not in writing, as required by the statute.) ↩
- See, e.g., Lane v. Lane, 912 P.2d 290 (N.M. 1996) ↩
- See, e.g., Jhordan C. v. Mary K., 224 Cal. Rptr. 530 (Cal. Ct. App. 1986) (holding that a sperm donor’s parental rights and responsibilities are not barred if the parties failed to use a licensed physician as required by statute); E.E. v. O.M.G.R., 20 A.3d 1171 (N.J. Super. Ct. Ch. Div. 2011) (same); see also Mintz v. Zoernig, 198 P.3d 861 (N.M. Ct. App. 2008) (holding that a sperm donor is the legal father of a child if the applicable statute relieves anonymous donors of parental rights and responsibilities, and his anonymity has not been maintained.) ↩
- For example, it has been held that even if the parties fail to comply with a statutory requirement that the husband’s consent be in writing, the court may nevertheless impose a child support obligation upon him on the basis of equitable estoppel or an implied support contract. R.S. v. R.S., 670 P.2d 923 (Kan. Ct. App. 1983) ↩
- See, e.g., CAL FAM. CODE § 7613(b) (2012), which provides:
The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child. ↩
- C.O. v. W.S., 639 N.E.2d 523 (Ohio 1994) (suggesting that doing so would violate the Equal Protection rights of the sperm donor.) ↩
- See, e.g., Jhordan C. v. Mary H., 224 Cal. Rptr. 530 (Cal. Ct. App. 1986) (holding that a donor may assert parental rights of custody and visitation if the parties carry out the artificial insemination without the use of the statutorily mandated licensed physician.) ↩
- See, e.g., CAL. FAM. CODE § 7613(b) (2012); Steven S. v. Deborah D., 25 Cal. Rptr. 3d 482 (Cal. Ct. App. 2005) ↩
- Della Corte v. Ramirez, 961 N.E.2d 601 (Mass. App. Ct. 2012); In re Parentage of Robinson, 890 A.2d 1036 (N.J. Super. Ct. Ch. Div. 2006) (holding that same-sex marriage partners are parents to the same extent as heterosexual marriage partners are); Karin T. v. Michael T., 484 N.Y.S.2d 780 (Fam. Ct. 1985); cf. Debra H. v. Janice R., 930 N.E.2d 184 (N.Y. 2010) (holding that a civil union is to be treated the same as a marriage for purposes of a state’s artificial insemination laws); Shineovich v. Kemp, 214 P.3d 29 (Or. Ct. App. 2009) (holding that Equal Protection requires that a mother’s lesbian domestic partner must be treated as a legal parent of her partner’s child to the same extent and under the same circumstances as a husband in a heterosexual marriage would be.) ↩
- See M.S. v. C.S., 938 N.E.2d 278 (Ind. Ct. App. 2010); cf. In re Paternity of Christian R.H., 794 N.W.2d 230 (Wis. Ct. App. 2010) (holding that same-sex partners do not acquire parental rights under the state’s artificial insemination statute in the way that married couples do.) ↩