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You and Me and Artificial Insemination Makes Three—when providing sperm gives paternal rights
Recently in Virginia, the Court of Appeals upheld a father’s right to have custody and visitation with his child. Bruce v. Boardwin, No. 1250-14-3 (Va. Ct. App. April 21, 2015). The case is noteworthy only because the father was a sperm donor. Ordinarily, a sperm donor would not be considered the legal father of the child conceived through his donation and would not have custody or visitation rights to the child. See Va. Code § 20-156 et seq. and Tex. Fam. Code § 160.702. But in this case, the father was not an anonymous donor, and the child’s mother did not receive the sperm from a sperm bank or her doctor. Rather, as the mother explained, the child’s father “would stop by [the mother’s] house. He would go to a separate room. Then, he would give her a plastic container containing his sperm. After a brief conversation, [the father] would leave. [The mother] used an ordinary turkey baster to inseminate herself. No other person was involved. They did not go to a doctor’s office or to a medical facility.” Bruce, No. 125-014-3.
That the parents of the child handled the sperm donation themselves was enough to change how that general rule concerning sperm donation was applied. Under Virginia law, a donor is one who “contributes the sperm or egg used in assisted conception.” Va. Code § 20-156. “Assisted conception” is then defined as “a pregnancy resulting from any intervening medical technology.” Id. The Virginia Court of Appeals held that “[t]he plain meaning of the term ‘medical technology’ does not encompass a kitchen implement such as a turkey baster.” Bruce, No. 1250-14-3. Thus under Virginia law, the father was not a donor, and the statute stating that a donor had no legal rights to the child did not apply. Id.
Like in Virginia, under Texas, “[a] donor is not a parent of a child conceived by means of assisted reproduction.” Tex. Fam. Code § 160.702. Yet “assisted reproduction” in Texas refers merely to “methods of causing pregnancy other than sexual intercourse.” Id. at § 160.102(2). The definition is not limited to medical methods as the definition is in the Virginia statute. However, the term donor refers to “an individual who provides eggs or sperm to a licensed physician to be used for assisted reproduction.” Id. at § 160.102(6). Thus a man who provides sperm directly to the mother—cutting out the middle man—might not be considered a donor under the statute, and the do-it-yourself method of artificial insemination used in the Virginia case may lead to the sperm provider having legal rights to the child conceived.