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Sperm Donation: More Complicated Than You Think…

A Kansas man is garnering national attention because he is being required to pay child support after donating sperm to a lesbian couple. The Kansas man, William Marotta, answered an online advertisement to donate sperm to a lesbian couple. In 2009 the couple and Mr. Marotta entered into an agreement in which he gave up his parental rights to the lesbian couple and was absolved of any financial responsibility.

After the birth of the child, the lesbian couple ended their relationship. The child received more than $6,000 in state benefits. As in Virginia, Kansas requires that the Department of Children and Families (or the Department of Social Services in Virginia) attempt to recuperate those expenses through biological parents.

The state of Kansas says that because Mr. Marotta did not work through a clinic or doctor, as the state law requires, he can be held responsible for support of the child.

Virginia Code Section 20-158 states that a donor, as defined in Virginia Code Section 20-156, is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother. In Virginia, it is very unlikely that Mr. Marotta would be held responsible for support of the child.

The issue of who was considered a “donor” was recently litigated in Virginia. The Virginia Court of Appeals sided with a Virginia Beach man who donated sperm to his longtime girlfriend. This ruling overturned a Circuit Court opinion that he lacked parental rights after the couple split up.

Billy Breit (who happens to be an attorney in Virginia Beach) and Beverly Mason conceived their daughter through in vitro fertilization. Before the birth, the couple signed a joint custody and visitation agreement in case they split. They also signed an affidavit stating that Breit was the child’s biological father. The couple parted ways when the child was four months old. Nine months after the split, Mason abruptly stopped allowing Breit to visit his child.

Mason’s attorneys argued that Breit was not the child’s legal father, citing Virginia Code 20-156 and Virginia Code Section 32.1-257, which states that “donors of sperm or ova shall not have any parental rights or duties for any child.”

Breit’s lawyers argued to the Court of Appeals that the cited sections of law were meant to prohibit anonymous sperm donors from making parental claims. The Court of Appeals agreed, and called the Circuit Court opinion a “manifest absurdity” that “ignores the intent of the legislature.”

If the Court of Appeals had upheld the ruling of the Circuit Court, it would have established a precedent that any couple who used any form of assisted conception would be engaging in an activity that could result in the father having no parental rights.

While the Virginia Code differs in important ways from Kansas law, certain legal pitfalls do remain with sperm donation in Virginia. Before engaging in any form of assisted conception, the donor and the biological parent(s) should consult with an attorney. The family lawyers at Livesay & Myers, P.C. can answer your questions regarding assisted conception. We represent clients in Manassas, Fredericksburg, Fairfax, and throughout Northern Virginia. Contact us to schedule a consultation today.

See also: Assisted Conception and Paternity Rights in Virginia