WOMAN GRANTED FULL CUSTODY IN PATERNITY CHALLENGE BY SPERM DONOR


Trabolsi & Levy Represents Mother in Landmark Case
Affirming Protection for Mothers from Paternity Claims by Sperm Donors

September 8, 2010, Santa Monica, Calif. -- The Superior Court of California in Santa Monica has granted sole legal and physical custody to a lesbian woman who gave birth to a child conceived using the sperm of an acquaintance who later sought parental rights.

In the case of Daniel C. vs. Karen B., the parties, who met through an online ad, had signed a layman's agreement in which they agreed that the sperm donor could visit the child occasionally but that the child would always live with the mother who would make all decisions regarding the child's upbringing, such as schooling, religion and health care. The parties also agreed that the mother's partner could adopt the child.

When the woman became pregnant, the sperm donor began to refer to himself as the "father" and began to assert himself into the lives of the woman and her lesbian partner. The donor, who is gay, also told others, including the woman's fertility doctor, that he was her husband.

When the mother refused the sperm donor's request to register the child as a Brazilian citizen and obtain a passport for the child to travel to visit Brazil, the sperm donor's native country, he sued the mother claiming he was entitled to joint legal and physical custody.

"Despite some complicated facts, it was a pure and simple case of the 'sperm donor statute,'" said Santa Monica attorney Ilene Trabolsi, who represented the mother in association with attorney Stephanie Benincasa of Malibu.

The family code statute, FC 7613 (b), states, "The donor of semen provided to a licensed physician or surgeon … for use in artificial insemination or in vitro fertilization of a woman other than the donor's wife is treated by law as if her were not the natural father of a child thereby conceived."

In a preliminary order, the judge awarded full physical and legal custody to the mother. On the day of trial, July 8, 2010, the sperm donor and mother stipulated that she would maintain sole custody, but she would allow him to visit twice per month.

"The decision in this case upholds the law, which was put into effect to protect both sperm donors and recipients -- whether they are married, unmarried, gay or straight. The law affords a statutory vehicle so that men are free to donate their sperm without fear of liability for child support and women can obtain semen for artificial insemination without the fear that the donor may claim paternity," said Trabolsi.

In a similar case in 2005, Steven S v. Deborah D, the California Appellate court found that the statute applied to known donors as well as anonymous donors. In that case, the man had sexual relations with the woman, the mother admitted the man was the father and the mother allowed the man to celebrate in the child's birth.

Opposing counsel had argued that because the mother signed a Voluntary Declaration of Paternity and the sperm donor's name appeared on the birth certificate that the donor should be considered a father.

In a 13-page decision, Commissioner David J. Cowan set aside the Voluntary Declaration of Paternity, which the mother contended was signed when she was under the influence of narcotics following a difficult cesarean surgery and could not have understood what she was signing.

Furthermore, the judge stated in his decision that the Voluntary Declaration of Paternity, which primarily is designed to determine who is the father when more than one man claims paternity, was not relevant and did not have greater weight than the sperm donor statue.

"Clearly we feel the best interests of the child were served with this decision," said Trabolsi. "If the sperm donor had custody and traveled with the child to Brazil he would be under no obligation to return the child to the United States."

The case of David Goldman has brought to public attention the difficulties faced when an American child is taken to Brazil by a parent who is a Brazilian citizen. Goldman fought for five years for the return of his son after his wife took the child on a supposed two-week vacation and never came back. Even after the mother remarried and later died in childbirth, Goldman fought a five-year battle to regain custody of his son from the child's stepfather.
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