Gay Sperm Donor May Sue Lesbian Mother for Joint Custody

A gay man who donated sperm to a lesbian couple so that they could have a child is entitled to pursue an action seeking custody and visitation rights in the Connecticut courts, according to an unpublished decision issued on December 7, 2007, by Superior Court Judge Michael E. Riley (Putnam County) in the case of Browne v. D’Alleva, 2007 WL 4636692. Judge Riley’s decision, which includes a thorough review of case law from other jurisdictions on a question of first impression in Connecticut, relies heavily on an acknowledgment of paternity executed by the biological parents shortly after the birth of the child, and Browne’s name being listed as the father on the child’s birth certificate.

According to Judge Riley’s opinion, Browne and D’Alleva became friends as Harvard undergraduates in 1983. D’Alleva and her same-sex life partner were united in a Connecticut civil union in 2005. Browne and his same-sex partner live together in Europe, where Browne works as an international banker resident in the U.K. Browne is seeking joint legal custody of the child, having refused in a prior proceeding (no longer pending) to agree to termination of his parental rights as a prerequisite to D’Alleva’s partner adopting the child. (Connecticut has by statute authorized the joint adoption of children by same-sex couples.) Browne is not asking to have residential or primary custody, but to be acknowledged as the legal father with visitation rights.

According to D’Alleva, she and her partner approached Browne in 2003 asking him to donate sperm so that D’Alleva could conceive a child to be raised jointly with her partner, Ms. Bochain. "As a part of their agreement," wrote Judge Riley, "Ms. D’Alleva alleges that she and Ms. Bochain would adopt the child and Mr. Browne and Mr. Piecha ‘would have some type of role as co-guardians,’ that Mr. Browne and Mr. Piecha ‘would have a role as secondary or "fun parents" and that the defendant [D’Alleva] and Ms. Bochain would be the primary parents."

Here is where factual disputes arise. Browne filed an affidavit "which tracks many of the assertions made by the defendant but also differs in some critical respects. He does not assert," wrote Riley, "that the defendant and Ms. Bochain were to adopt the minor child and that his role would be that of a secondary or "fun" parent. He claims that he was told that he would be a legal guardian of the child and that he would have a permanent and significant role in the child’s life."

Unfortunately, found Riley, "All these factual claims by both parties were prior to the sperm donation and none were reduced to writing (other than letters) much less to the format of a legal agreement."

Complications ensued as the process continued. In order to have the in vitro procedure performed at a Connecticut reproductive services facility, the parties had to execute a consent form provided by the facility. In that form, the donor agrees to "give up all rights and claims" to the child conceived from his donation. Neither Browne nor D’Alleva had anything to do with drafting this form, and neither of them sought legal advice as part of the procedure.

The facility’s policy required isolating donated sperm for a six month period before performing the procedure to fertilize the egg and implant it. With one thing and another, the process was delayed a bit. Tthe forms were signed when the sperm was donated in June 2003, but the child was not born until May 2005. Browne was present at the birth, the parties signed the Acknowledgment of Paternity form, and Browne was listed as father on the birth certificate.

Then in September 2005, Browne refused to sign the documents necessary to terminate his parental rights and to permit Ms. Bochain to adopt the child. D’Alleva filed suit to terminate his parental rights, relying on a Connecticut statute and the consent form. Browne countersued to establish his paternity and visitation rights. D’Alleva’s suit has been withdrawn, but she filed a motion to dismiss Browne’s suit, claiming that as a sperm donor he lacks standing under Connecticut law to seek custody and visitation.

D’Alleva relies on the consent form that Browne signed, as well as on a Connecticut statutory provision, Section 45a-775, which states: "A donor of sperm used in AID, or any person claiming by or through him, shall not have any right or interest in any child born as a result of AID." (AID refers to artificial insemination by donor.)

However, reading that statutory provision out of context is erroneous, Browne argued, because the statute as a whole was enacted for the purpose of legitimizing children born to married couples where the husband was infertile and donated sperm was used to impregnate his wife, and the purpose of this section, according to Browne, was to ensure that in such a situation the donor would have no parental rights and the child would be considered the natural child of the husband. Browne argued, and the legislative history appears to confirm, that the legislature was not contemplating the situation presented by this case when it passed the law in 1970. Furthermore, Browne argued, his constitutional rights as a biological father would be violated if the statute were found to preclude him from seeking custody and visitation.

Lacking any Connecticut appellate precedents to follow, Judge Riley canvassed the court decisions of many other states and found plenty of decisions but little firm guidance, because state statutes vary and many cases did not directly address the question of standing to sue. Furthermore, he found that Browne correctly asserted that the import of Section 45a-775 was ambiguous in this situation.

"In the present case," he wrote, "the language of Connecticut’s sperm donor statute, section 45a-775, cannot be considered to be clear and unambiguous since the Act of which it is a part on artificial insemination neither includes the words ‘known’ or ‘identified’ sperm donor nor are there any statutory definitions of these words. In addition, when the statute was enacted in 1970, it becomes clear that it was not envisioned by our legislature that the statute would apply to this unique fact situation. Rather, when read together with other sections of the Act, in particular section 45a-774, it can be gleaned that the intent of these statutes is to protect children born, as a result of this procedure to be performed only by the consent and request of the husband and wife, from bastardy, and, therefore, these children were to be considered the legitimate children of the husband."

"Even if this court concluded that section 45a-775 is clear and unambiguous," Riley continued, "if there is an agreement between the parties about the donor’s parental rights and that he would have them, it would be a violation of his due process right to apply the statute to him." Since Browne had submitted an affidavit swearing that his willingness to donate sperm had been "based on an understanding that any child born of the procedure, would have an ongoing relationship with him, including visitation rights, and that he would be known as the child’s father," it would be unfair to dismiss his case outright without giving him the opportunity to prove the existence of that agreement. Riley found that acknowledgment of paternity and the name on the birth certificate both supported Browne’s allegations that the understanding was that he would be the child’s father, not merely a sperm donor, despite anything to the contrary on the consent form required by the clinic. Riley also noted a public policy in Connecticut of finality with regard to paternity determinations.

D’Alleva claimed that she had not intended by signing the acknowledgment of paternity to let Browne block her partner’s adoption of the child or to make him into a legal parent, but, wrote Riley, "that belief does not affect the legal import of her having signed it. Undoing such an acknowledgment, after the sixty-day period [provided by statute] has passed may only be done at the discretion of the Court and based upon a DNA test that the respondent is not possibly the biological father of the child. That is not the case here."

Riley concluded, "Based on the circumstances surrounding the decision by the defendant to be artificially inseminated by the sperm of the plaintiff, the preconception intent of the parties, the evidence submitted, and, in particular, the plaintiff’s acknowledgment of paternity, it is the court’s determination that he has standing to bring an application for joint legal custody and visitation fo the child." Riley denied D’Alleva’s motion to dismiss the case.

This case demonstrates, if further demonstration were needed in light of the past several years of litigation over these issues in many states, that states such as Connecticut have fallen too far behind social realities in failing to revise their statutes to reflect modern reproductive practices in an age of family diversity. Furthermore, this decision stands as a rebuke to adults (as the parties in this case surely were both at least in their thirties when their "agreement" was made) who fail to seek legal advice prior to doing something as momentous as creating a child outside of the familiar principles of traditional marriage. In this case, the clinic advised the parties to seek legal advice and their failure to do so was quite irresponsible on their part, resulting in the legal mess reflected in this decision. Where is the best interest of the child in all of this? That apparently does not become relevant until a later stage of the proceeding, since the December 7 ruling was solely on the question whether Mr. Browne can maintain the cause of action.

Comments

[Kimi]

Legal custody will generally describe the decision making on upbringing of the child. In most cases, both parents will have joint legal custody of the child. However, the court awards sole custody to one of the parents in some cases.

[Art Leonard]

What makes this case of interest beyond the immediate parties is what it says about the poor fit of current statutory and case law to the situations involving "non-traditional" families and families arising from non-marital donor insemination agreements. A key question in this case is whether it makes sense to allow a sperm donor father living in England to sue for joint legal custody of a child being raised by an intact lesbian couple in Connecticut, thus depriving the mother's life partner of establishing the legal tie to the child that would help to support the family in which the child is actually being raised.

Of course, this proceeding may actually just delay reaching the most desirable outcome, since it seems quite likely to me that a Connecticut court will ultimately see it as being in the best interest of this child to be legally related to the two women who are raising the child. Or, perhaps, the Connecticut court will be swayed by the handful of recent cases suggesting that a child can have three legal parents simultaneously arising from this kind of fact pattern.

[Julie Shapiro]

The court might give custody to the mother rather than share with the donor/father, as that would be pretty disruptive. But I wonder whether it would terminate his rights (assuming it found he had them.) The best interests of the child doesn't usually lead a court to do that. And I wonder if it would tolerate the "this child has three parents" solution.

[Art Leonard]

Isn't termination of his rights a necessary prerequisite to letting the mother's partner adopt, unless the court is willing to go out on a limb and say there can be three legal parents? And isn't it likely, assuming the fitness of the individuals involved, that the best interest of the child is to be legally related to both her primary parents, her birth mother and her mother's civil union partner?

[Grace]

The participants in this case went through lengthy and extensive counseling at UCONN medical center where the sperm donor was repeatedly informed that he would not have a legal right to the child, where he was repeatedly asked if he understood. This process assured Anne and her life partner, my sister, over her initial misgivings, that this process would result her legal adoption of the child.

It is easy to say it is irresponsible that all parties did not add to the thousands of dollars they were already spending, as well as the grueling medical processes involved, the additional burden of legal advice. The suggestion to get advice, by the way, was a disclaimer on some forms, which was far overshadowed by the process itself. They were assured and convinced by this process that the sperm donor was agreeing to terminate parental rights after the birth of the child. They viewed the sperm donor signing the birth certificate in this light, as a first step in this process. That is, he would sign the certificate, establishing the paternity, that he would then turn over, in accordance with the counseling and agreements he had signed at the medical center. Had Anne and my sister been told by the professionals they were trusting for the whole procedure that the agreements they were signing would mean nothing, they would indeed have sought legal counsel.

Anne and my sister left no stone unturned in their planning and preparation for a family, and did everything that could be humanly done to assure the health and well being of this child. If they were totally blind-sided by this, as they were, it was because there was nothing in the process that would make them think they needed additional advice and protection. If the medical center knew that Anne and my sister were taking such a risk, shouldn't they have said so? And who should have known, the people who do this every day and put this process and the forms together, or Anne and my sister, doing it for the first time?

My sister and her partner are wonderful and extremely responsible parents. In fact, I have never seen a more child centered home and two parents more committed and and involved with their children. But this has taken an emotional and financial toll on their family and in fact on the sperm donor and his partner. I am worried for the child's sake that he is subject to this stress in areas that he can't possibly understand. I am further appalled with a system that can pass off a counseling process that was poorly designed at best and misleading at worst and an unworkable, harmful and discriminatory legal outcome onto Anne and my sister.

I guess if you want to take people who have to work harder than most others to create and protect a family, and who in fact do a better job than anyone I know, you can always find something. Discrimination and scapegoating are like that. It implies that if someone would only do things right, that the system would work for them, when in fact, in this case, it did not. In this case, the people acting in the best faith, committing the most, and making the smallest mistake, paid the highest price. So we need to see the reality of this essential issue. The system failed and needs to be fixed. The 1970's decision was not invalid in that it failed to anticipate developments in reproductive technology. It applies because it was designed to protect the safety and sanctity of a family. Here are two loving parents committing everything to create a stable and secure home for their young and vulnerable children. The system should help.