Law Review: Sperm donor liable for child support as father?
November 18, 2017
Under California law, a sperm donor (appropriately) is not treated as the parent of a conceived child.
Not so fast, under County of Orange v. Brian Jeffrey Cole, that hard and fast rule may not be so hard after all.
LET'S HAVE A BABY
Brian Jeffrey Cole and Mie Lynn Tsuchimoto had a relationship and discussed raising a child together. Cole, who had previously had a vasectomy, had his sperm extracted, and following in vitro fertilization, a baby boy entered the picture. Cole spent one or two nights a week at Tsuchimoto's residence and helped name the child. Cole identified himself to friends as the child's father and allowed the little guy to call him "daddy." He also bought gifts and made regular payments to Tscuhimoto. Cole was a pilot. Tsuchimoto believed that when he was not with her he was out of town.
Au contraire. Cole was married, had two children and lived a dual life with two families — until he walked out on Tsuchimoto and insisted he had no financial responsibility for his love child.
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A few years later Orange County sued Cole declaring he was the child's father and must pay child support.
Cole defended Orange County's claim for support based upon section 7613 of the California Family Code:
"The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction by a woman other than the donor's spouse is treated in law as if he were not the natural parent of a child thereby conceived."
Of course, that law is to protect anonymous sperm donors from claims arising from fathering a child.
A PRESUMED PARENT
Section 7611(D) of the California Family Code, as Orange County argued, reads "a person is presumed to be the natural parent of the child if …(d) The presumed parent received the child into his or her home and openly holds out the child as his or her natural child."
That rebuttable presumption suggests Cole could be deemed the natural parent of his child and found responsible for child support … except section 7613 seems to mandate otherwise.
What we have here is dueling laws. Worse than a failure to communicate, a failure to be responsible for one's actions. Wanting to have a child and be able to walk out the door at any time without financial responsibility. Nice try Cole, you scum bag.
A FATHER HE IS
The 4th Appellate District Court concluded that the legislature's intent with the Family Code, as the name suggests, is to support families and children of families, writing, and I love this: "The statute does not require that Cole hold out the child as his own in every situation and it does not protect father's who lead double lives."
A sperm donor who has established a familiar relationship with the child can be found to be a presumed parent (and responsible for child support) even though he could not normally be found to be a parent under semen donor law: section 7613 of the Family Code.
The lesson for Cole: man up!
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, and Reno. His practice areas include: real estate, development, construction, business, HOA's, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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