July 12, 2013 -- A California state bill that would give sperm donors the ability to sue for parentage rights has drawn criticism from those who say it could allow a man to "change his mind" about paternity even after he knowingly gave up his rights before conception.
Although the bill, SB 115, reportedly sailed through the state Senate in April, it's drawn harsh arguments from several sides in the past several weeks, with some groups condemning it as unfair to mothers and others saying it simply closes a loophole that prevented sperm donors from achieving parentage in the past.
Jason Patric, the actor whose name has unwittingly become associated with the bill, has been battling for custody of 3-year-old Gus, who was conceived using Patric's donated sperm through an intrauterine insemination procedure. Patric and the boy's mother disagree over the nature of their relationship and Patric's relationship with Gus, but a judge ruled in February that Patric couldn't sue for custody because he was merely a sperm donor.
As such, Patric said he hopes the bill will pass.
"I feel very strongly about it," he told ABCNews.com. "I hope it will help me. … Hopefully, this law is going to protect someone from this vindictive shutting out."
Under existing law, sperm donors are not legally considered the "natural fathers" of their offspring unless both parents sign a document before conception. This applies to anonymous sperm bank donors and known sperm donors participating in in-vitro fertilization with women who are not their wives.
In other words, unmarried heterosexual couples trying to conceive need to sign a paper that says the sperm donor is the intended father. Similarly, lesbian couples who use a friend's donated sperm might opt not to sign it because they do not want the donor to serve as a parent to the child, either legally or otherwise.
The new bill, SB 115, would allow any sperm donor to sue for parentage. If the sperm donor can prove he "receives the child into his home and openly holds out the child as his natural child," the judge can grant parentage and the father can then sue for custody.
Supporters of SB 115 say the fact that a sperm donor has to prove a father-child relationship should protect women from a nonfamily member fighting his way into the family against their will. Opponents of the bill say the standard for establishing parentage will be too low, and even if the sperm donor loses, the law still allows him to disrupt a family's life by bringing it to court.
The California National Organization for Women "vehemently" opposed SB 115 in a statement, calling it oppressive to women and adding that a simple co-parenting contract after conception would suffice if the goal is to form voluntary families.
"The desire for the known sperm donor to have the additional rights of custody and joint decision making without the consent of the mother is nothing but dominance personified," the group's president, Patricia Bellasalma, said in a statement. "It is not lost on California NOW that SB 115 does not seek the same ownership or control of children for egg donors and/or surrogates."
But Equality California, a statewide LGBT advocacy group, and the National Center for Lesbian Rights support the bill, arguing that parentage would only be granted in cases in which the mother allowed the sperm donor to act as a parent.
"It will only apply in situations where the man who could be considered a sperm donor has lived with the child and has held himself out as the child's father," John O'Connor, executive director of Equality California, said in a statement. "The other parent or parents would need to invite him into the child's life by allowing him to live with the child in order for this presumption of parentage to arise."
Several family lawyers have joined the fray as well, writing to legislators and authoring op-eds about the bill."While supporters describe the bill as closing a loophole in California law -- allowing biologic[al] fathers to be on equal footing with nonbiologic[al] fathers who are permitted to gain parental rights based on 'receiving' and 'holding out' – in truth the bill would tear asunder far more families than it would unite," Judith Daar, a University of California Irvine School of Medicine and Whittier Law School professor, wrote in the Daily Journal, a California legal newspaper.
Patric, who starred in "The Lost Boys" in 1987, reportedly inspired the bill when he lost his custody battle because state law says a sperm donor is not legally considered a natural father, and his lawyer, Fred Silberberg, said he was denied standing to sue for custody.
Gus' mother, massage therapist Danielle Schreiber, dated Patric off and on but argued that they agreed she would raise Gus alone because he did not want to be a father, according to those familiar with the case. According to her lawyers, Patric also insisted that his biological fatherhood be kept secret and did not see Gus during most of his first year of life.
Patric and his lawyers said this was untrue. They said the couple decided to have Gus and raise him together, but when the relationship ended, Schreiber took him away. A pre-conception document signed by the Patric and Schreiber was not considered in court because the judge said it wasn't binding. The document was signed in 2009, before a 2011 law requiring such a document in order for a sperm donor to be considered a natural father, Silberberg added.
Schreiber won the case in February, but Patric has appealed. Silberberg said the judge determined Patric didn't have the right to sue because he was a sperm donor.
"Technically, what we won is the parentage case," Fred Heather, Schreiber's attorney, told ABCNews.com. "We won the argument that she is the sole legal parent of the child and, therefore, as a result of that the court does not have jurisdiction to reward custody."
Hill, a Democrat from San Mateo, Calif., introduced the bill in January. His spokesman said he did so because he wrote previous legislation that Heather used in court to win the case against Patric. Hill's spokesman said he never intended the legislation to be used this way and wanted to close the "loophole."
Hill and Patric have not met.
The state assembly is expected to vote on the bill in August.