Friday, 22 February 2013

Of Lost Boys and Known-Donor Fathers

Sleep all day. Party all night. Never grow old. Never die. It’s fun to be a vampire."

Anyone who was sentient and under fifty in 1987 will recognise the tagline above from “The Lost Boys”.  Over twenty-five years later, I can still remember the buzz the movie generated.  Vampires were cool and sexy, teenage vampires more so.  A large part of the appeal was boy eye-candy in the form of a brooding young actor called Jason Patric. 

Patric has popped up from time to time since, most recently in the context of a dispute with his former girlfriend about their son.

According to media reports, Patric is involved in a heated dispute with Danielle Schreiber.  The two were an item for many years, but went their separate ways in 2009.  Around the time of their separation, apparently Patric donated sperm so that Schreiber might choose to conceive a child.  The understanding was that he would have nothing to do with the raising of any child she had using his genetic material.

Schreiber duly conceived a child with the help of a doctor using Patric’s sperm.  Their son, Gus, was born in December 2009.

Patric had no involvement in Gus’s life until 2011, when he and Schreiber rekindled their relationship.  The reconciliation was short-lived, and the two parted ways once again in May 2012.  It was at that point that Patric decided he wanted to continue to be involved in his son’s life.

The matter came before a Judge last week, but was apparently halted and Patric's application dismissed.  This was because of a local law that provides that if:

·                     a man donates sperm to a woman to whom he is not married;
·                     she conceives a child, and
·                     the conception occurs with the help of a doctor

Patric and Schreiber with Gus

then the man is not considered the child’s legal father.  He has no claim for custody or paternity rights.

Reports suggest that Schreiber is prepared to let Gus spend time with Patric on a voluntary basis, but objects to a court-imposed regimen of time. 

Known-Donors in England and Wales

Patric’s case resonates with legal developments this side of the Atlantic affecting known-donor fathers and their children.  As with Gus, the mechanics of conception can be very significant when determining in the child’s legal parent/s.  In a nutshell:

·                   if the mother is married or in a civil partnership at the time of conception, she and her husband / partner will normally be treated as the child’s legal parents.  The known donor will have no legal status as the child’s father;

·                   if the mother has a partner (or either gender) but is neither married nor in a civil partnership at the time of conception, then legal parenthood depends on the method of conception. 

If at a licensed clinic, then the mother’s partner may be treated as the child’s other parent.  The known donor will not be the child’s legal father. 

If through home insemination, the known donor will be the child’s legal father;

·                  if the mother is single, then again the method of conception dictates legal parenthood. 

If at a licensed clinic, the mother might be able to establish that the known donor should not be treated as the child’s legal father.  However, this is not automatic.

If through home insemination, the known donor will be the child’s legal father.

Whether the known donor is considered the child’s legal father has, unsurprisingly, some important consequences.  For example, a known-donor legal father has an obligation financially to support his child.  This is so even if the parents earlier agreed to the contrary.  There have been several high-profile cases – widely reported in the media – where a known-donor legal father has been required to pay child support in circumstances where (at the time of conception) there was a clear understanding he would bear no financial responsibility. 

Any agreement reached between the known-donor and the child’s mother is not binding.  The Court of Appeal in A –v- B and C [2012] 2 FLR 620 (in which I represented the father) said that pre-conception intentions were relevant, but neither could nor should be determinative.  People change their minds.  Human emotions are powerful and inconstant. What adults looked forward to before engaging in the reality of conception, birth and the first experience of parenting might ultimately prove to be an illusion or fantasy.  The court’s only focus was on the child’s welfare and developing rights.  If those considerations required a departure from any pre-conception agreement, then so be it.

I suspect Patric’s case would have been dealt with very differently if brought before a court in London.  In a very recent decision – Re G (A Minor); Re Z (A Minor) [2013] EWHC 134 (Fam) – two known donor fathers were given permission to refer a dispute about custody to court.  Although not legal parents, the Judge considered that their genetic and psychological parenthood were also important, and were not automatically extinguished by the removal of the legal status of parenthood.  This decision also confirmed that the granting of permission is fact-specific.  There will be cases where the known donor has played no role in the child’s life, or had no contact.  In those, it may not be appropriate to give permission.  However, where there has been a history of contact by the child with the known donor, it is likely that permission will be granted.

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