Jhordan C. v. Mary K., 179 Cal.App.3d 386 (1986)

CASE: Mothers, biological and social, of a six-year-old boy seek to overturn an order in which the boy's biological father (a sperm donor) was declared his natural father and in which the mother who did not bear the child was denied status as his de facto parent.

FACTS: Mary and her friend, Victoria, decided they wanted to have a child and to raise it together. They sought sperm donors among their friends and acquaintences, eventually settling on Jhordan C. What is clear about the arrangement they parties struck is that the arrangements were not altogether clear. Mary says she told Jhordan that she did not want a donor who desired an ongoing involvement with the child, but said she would permit Jhordan to see the child to satisfy his curiosity about the child's appearance. Jhordan says that they agreed that he and Mary would have an ongoing friendship, he would have ongoing contact with the child and he would care for the child as much as two or three times per week. None of the parties sought legal advice before entering into this arrangement, which they did not reduce to writing. Mary artifically inseminated herself in the home with sperm expressed by Jhordan and gave birth to Devin in March 1980. Trouble immediately developed. After demanding a right to see the child regluarly, Mary reluctantly agreed to permit Jhordan monthly visits with Devin. In December 1980, Jhordan filed an action to establish paternity and visitation rights. He won visitation rights and was ordered to reimburse the county for the public assistance given to Devin. In August 1983, Victoria was named a party to this litigation. She sought joint legal custody of Devin (with Mary) and requested specified visitation rights, asserting that she was the de facto parent of Devin. Jhordan requested an award of joint custody to him and Mary. The trial court declared that Jhordan was the legal father of Devin and awarded sole legal custody of Devin to Mary C. Jhordan was given substantial visitation rights, as was Victoria, who was denied a declaration that she was Devin's de facto parent.

MARY C., VICTORIA ARGUE:

1. Despite the requirement of physician involvement stated in the California Civil Code, the Legislature did not intend to withhold application of the donor nonpaternity provision where semen used in artificial insemination was not provided to a licensed physician.
2. A physician requirement offends a woman's sense of privacy and reproductive autonomy, might results in burdensome costs to women and might interfere with a woman's desire to conduct the procedure in a comfortable environment such as her own home or to choose the donor herself.
3. The failure to apply the statute to unmarried women who conceive artificially with semen not provided to a licensed physician denies equal protection because the operation of other parternity statutes precludes a donor's assertion of paternity where a married woman undergoes artificial insemination with semen not provided to a physician.
4. Mary and Victoria contend that they and Devin compose a family unit and that the trial court's ruling constitutes an infringement on a right they have to family autonomy, encompassed by the constitutional right to privacy.

COURT SAYS: Affirms the lower court ruling, (finding for Jhordan C.).

HOLDING: Where impregnation takes place by articial insemination and the parties have failed to first give the semen to a licensed physician as provided in the statute, to preclude paternity, and where the parties by all other conduct preserved the donor's status as a member of the child's family, the donor of the semen can be determined to be the father of the child in a paternity action.

RATIONALE:

• The legislative history suggests that the Legislature consciously adopted the physician involvement requirment.
• A physician can obtain a complete medical history of the donor (which may be of crucial importance to the child during his or her lifetime) and screen the donor for any hereditary or communicable disease.
• The law does not require that a physician independently obtain the semen and perform the insemination, but requires only that the semen be "provided" to a physician. Thus, a woman who prefers home artificial insemination can still do so and obtain statutory protection against claims of paternity.
• The statute treats married and unmarried women equally. Equal protection is not violated by providing that certain benefits or legal rights arise only out of the marital relationship.
• Because Jhordan was given visitation to Devin and substantial contact with him, he also is a part of the family unit.
• Victoria already has visitation rights, so a claim that she is the de facto parent of Devin is premature.
• Formality of physician involvement can help to clear up misunderstandings between the parties regarding the nature of their relationship and the donor's relationship to the child.

T O P