Daddy or Donor? Uncertainty in California Law in the Wake of Jason P. v. Danielle S.

Amy Leah Holtz

Volume 68, Issue 4, 869-908

The era of technology has provided a proliferation of new scientific and technological methods designed to assist individuals and couples to successfully conceive children when they otherwise would not be able to: collectively known as “assisted reproduction technology” (“ART”). ART undoubtedly provides significant benefits, but at the same time opens the door to a new realm of legal disputes. Particularly, various forms of ART involve a third-partysuch as a sperm donor or a surrogatewhich raises the question of who will be treated as a legal parent of the child so conceived. The use of third-parties in ART has confounded traditional notions of parent-child relationships by involving individuals who have a biological relationship with the child, but may or may not intend to act as a legal parent. This Note focuses on parentage disputes between unmarried individuals who conceive children through the use of third-party assisted ART.

Specifically, this Note provides a critique of a 2014 case in which a California court established paternity rights for a sperm donor who undisputedly did not intend to father at the time of conception, but attempted to assert parental rights over the vehement objections of the child’s mother after the child was born. This Note argues that the court’s decision was legally incorrect and left California law in a state of confusion resulting in public policy consequences. This Note proposes that California resolve this confusion by adopting an intent-based approach to parentage decisions in the ART context. Such an approach would provide certainty in application of the law that is essential in making informed decisions about whether to engage in third-party assisted ART.

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