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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.
Stacey Holley Valdez Attorney Stacey Holley Valdez is among the one percent of attorneys in Texas to have achieved Board Certification in the practice area of family law. This certification is awarded to only those attorneys who demonstrate significant experience in family law, the highest ethical principles, and a comm… Read More 
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