California Court of Appeals, Second District, Fourth Division
APPEAL from a judgment of the Superior Court for Los Angeles County No. BF045218, Stephen M. Moloney and Mark A. Juhas, Judges.
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Fred Silberberg and Edward J. Horowitz for Plaintiff and Appellant.
Wasser, Cooperman & Carter, Laura A. Wasser; Glaser Weil Fink Jacobs Howard Avchen & Shapiro, Patricia L. Glaser and Fred D. Heather for Defendant and Respondent.
Family Code section 7613, subdivision (b) (hereafter, section 7613(b)) currently provides: “The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction of 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, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.” In Steven S. v. Deborah D. (2005) 127 Cal.App.4th 319 [25 Cal.Rptr.3d 482] (Steven S.), we reversed a finding of paternity in favor of a donor of semen provided to a licensed physician, rejecting the sperm donor’s argument “that we should look beyond the words of the statute to find legislative intent for a public policy favoring a finding of paternity where, as here, the mother was in an intimate relationship with a known donor and also attempted to conceive naturally, albeit unsuccessfully.” (Id. at p. 325.) In rejecting the donor’s argument, we employed broad and categorical language. We declared: “There can be no paternity claim from a sperm donor who is not married to the woman who becomes pregnant with the donated semen, so long as it was provided to a licensed physician.” (Id. at p. 326.)
We should not have been so categorical, because we were not faced with a donor seeking to establish paternity under section 7611, the presumed
parentage statute, and therefore had no occasion to consider whether section 7613(b) precludes any such attempt. We do so now, and conclude that section 7613(b) does not preclude a donor from establishing that he is a presumed father under section 7611.
In June 2012, appellant Jason P. filed a petition to establish a parental relationship with Gus S., a child born to respondent Danielle S. in December 2009. Danielle opposed the petition, arguing that Jason was a sperm donor under section 7613(b) and therefore was not Gus’s natural father as a matter of law. Jason contended that (1) he is not a sperm donor within the meaning of section 7613(b); (2) he is a presumed parent under section 7611, subdivision (d) (hereafter, section 7611(d)); (3) Danielle is estopped from denying Jason’s parental relationship; and (4) it would be unconstitutional to deny Jason an opportunity to establish legal paternity under the facts of the case. The family law court set the matter for trial in phases, ordering that the first phase of the trial would address only whether Jason is a sperm donor within the meaning of section 7613(b). In the meantime, the court entered a pendente lite order awarding visitation for Jason with Gus.
The parties agreed upon the following facts at the start of the trial. Jason and Danielle cohabitated for many years, but they never married. Gus was conceived through in vitro fertilization (IVF). Jason provided to a licensed fertility clinic the sperm used in the IVF procedure. Jason is not listed on Gus’s birth certificate, and there is no voluntary declaration of paternity. Gus has no other natural, presumed, or potential biological father.
In addition to the agreed upon facts, Jason presented evidence that he and Danielle tried to have a baby naturally beginning in 2006. Although Danielle became pregnant in December 2006, the pregnancy was not viable after six and a half weeks. In 2007, Danielle had two intrauterine insemination (IUI) procedures using Jason’s sperm, but neither resulted in a pregnancy. In October 2007, after being advised that their inability to conceive might be due to issues regarding Jason’s sperm count, Jason had a surgical procedure to address that problem. She and Jason also began to look into having an IVF procedure.
In May 2008, Danielle moved out of Jason’s home and bought a home nearby. The following month she purchased sperm of an anonymous donor from a sperm bank and told Jason she was going to pursue motherhood as a single mother. At some point in the fall of 2008, she looked at a website for
“single mothers by choice” to learn about her rights; she learned that in California, a man who gives his sperm for artificial insemination is never treated in the law as though he is the father. In September 2008, she moved back into Jason’s house while the house she bought was being remodeled.
In November 2008 or January 2009,  Jason gave Danielle a letter in which he wrote that he was not ready to be a father, but if Danielle wanted to use his sperm to conceive, she had his blessing as long as she did not tell others. Danielle chose to use Jason’s ...