Virginia Supreme Court rules that unmarried donor father may assert his parental rights

In L.F. v. Breit, Mason v. Breit, Nos. 120158, 120159, 2013 Va. LEXIS 4 (Jan. 10, 2013) (combined opinion), the Virginia Supreme Court affirmed a Court of Appeals ruling that allows an unmarried donor father to assert his parental rights.  The mother and father were in a relationship and lived together for several years. After learning they were unable to conceive a child together naturally, they decided to try in vitro fertilization using the father’s sperm and the mother’s eggs.  Once the mother became pregnant, the father and mother continued to live together and entered into a custody agreement before the child was born.  The father is listed as the father on the child’s birth certificate and signed a voluntary acknowledgement of paternity the day after the baby was born. The parties sent out birth announcements together and gave the child a hyphenated last name.  When the child was four months old, the couple split up.  The father continued to support the child, both financially and through frequent visitation, until the mother cut off all contact between father and child just after the child’s first birthday.  The father attempted to assert his parental rights in court.  As an aside, the father was represented by Virginia State Bar President-elect Kevin Martingayle.

On de novo appeal, the Virginia Supreme Court rejected the mother’s argument that the Court of Appeals should not have “harmonized” the language in Virginia Code sections 20-49.1(B)(2) and 20-158(A)(3).  Section 20-49.1(B)(2) addresses how a parent-child relationship can be established by a written acknowledgement of paternity.  Section 20-158(A)(3) states that “[a] donor is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother.”  The Court points out that section 20-164, which is part of the assisted conception statute, cross references section 20-49.1, thus requiring section 20-158 to be read together with section 20-49.1 in cases such as this one. The Court noted that the General Assembly had not thought of situations such as this one when it passed the assisted conception statute.

This case highlights that the legislature cannot always keep up with technological advances.