Parental rights in case of assisted fertilization birth

By: Frank Green
Richmond Times-Dispatch

A Virginia Beach man's effort to win parental rights over his biological daughter who was conceived via in vitro fertilization is set to be argued before the Virginia Supreme Court this morning.

William D. Breit, the girl's father, declined to comment Monday. The now 3-year-old boy's mother, Beverly Mason, who is challenging a Virginia Court of Appeals ruling in favor of Breit, could not be reached Monday.

Their dispute stems from an interpretation of Virginia law that sperm donors cannot claim parental rights in assisted fertilizations — even when the mother agreed the donor is the father — if the two were not married at the time of conception or birth.

Among other things, the law says a donor "is not the parent of a child conceived through assisted conception unless the donor is the husband of the gestational mother."

But the Virginia Court of Appeals held that the interpretation of the law given by the Virginia Beach Circuit Court "results in a manifest absurdity."

"Such a narrow reading of the assisted conception statutes fails to accord harmony with — and indeed all but negates — the ability of a known biological father, chosen by the birth mother, to establish parentage," the appeals court panel held.

Walter S. Felton Jr., chief judge of the appeals court, wrote that the lower court decision ignores the intent of the General Assembly to ensure that all children born in Virginia have a known legal mother and father.

The opinion noted that the law was enacted following a 1990 Virginia case in which the husband of a woman artificially inseminated with sperm from an anonymous donor was the father of their twins for purposes of legitimacy, inheritance and birth certificates. But the parental rights of the sperm donor could be legally terminated only by formal adoption of the children by the husband, the 1990 case said.

According to the appeals court opinion last December, Breit, a lawyer, and Mason were not married but were living together in a long-term relationship several years ago and wanted to conceive, but they were unsuccessful in having a child through sexual intercourse.

In October 2008, a physician successfully achieved fertilization using sperm and eggs retrieved from the couple, and the embryo was then transferred into the mother. The two continued to live together during her pregnancy.

In June 2009, just before the baby was born, Mason and Breit signed a written custody and visitation agreement, prepared by Mason's lawyer, that provided Breit with reasonable visitation said to be in the best interest of the child.

The day after the child was born, the parents executed a sworn acknowledgement of paternity agreement naming Breit the biological father. They also agreed the daughter would have a hyphenated last name consisting of their surnames.

They jointly mailed out birth announcements and continued to live together, and Breit kept the baby on his health insurance. Then in August 2010, Mason cut off all contact between the child and Breit.

Breit filed a petition for custody in Virginia Beach and a petition to determine the child's parentage and establish custody and visitation. He argued that the mother's earlier acknowledgment that he and she were the parents created a binding parental relationship.

Mason asked that Breit's petition be dismissed under Virginia law, which she says bars a sperm donor from asserting parental rights to a child conceived through assisted conception — unless he was married to the mother.

She argued the acknowledgement of paternity agreement they signed was void because it was contrary to General Assembly's intent to divest all sperm donors of any parental rights.

Breit lost in Virginia Beach Circuit Court, where the judge decided that as an unmarried sperm donor, Breit was barred from establishing parental rights. Breit appealed to the Virginia Court of Appeals.

Breit argued the primary purpose of the law was to divest sperm donors of legal rights and responsibilities in cases where married couples are infertile and the donor remains anonymous.

Mason contended that in passing the donor law, the General Assembly's intent was to strip sperm donors of parental rights and responsibilities for children born as a result of assisted conception.

In ruling in Breit's favor, appeals court judges noted it was the first time they had been asked whether state law prohibits a known sperm donor not married to the mother, but who signed an acknowledgment of paternity, from establishing parentage.
Mason appealed, leading to today's hearing in the Virginia Supreme Court.

Interesting article.

Tucker Griffin Barnes P.C.
Charlottesville, VA (434-973-7474)
Inquire@TGBLaw.com
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