Sperm Donor Suit Advances

After waiving parental rights, gay man challenges lesbian mom's plans.

By: ARTHUR S. LEONARD | A gay banker who lives in England and donated sperm to a Connecticut lesbian couple has the right to sue for joint custody and visitation rights of the resulting offspring, under a December 7 ruling by Connecticut Superior Court Judge Michael E. Riley.

Riley found that a 1970 state law on artificial insemination, which appears to cut off parental rights of sperm donors, does not apply.

The parties to Browne v. D'Alleva have been friends since their Harvard undergraduate days in 1983. In 2003, D'Alleva and her partner, who have since entered into a Connecticut civil union, asked Browne to donate his sperm. Browne's account is that they agreed that he would remain the child's legal father and not surrender any parental rights. According to D'Alleva, however, Browne agreed he would consent to having her partner adopt the child, and that he and his partner would have a “secondary role” as “fun parents” who would see the child occasionally. The parties never signed a written agreement.

At the Connecticut clinic where Browne made his sperm donation, he signed a consent form, consistent with the 1970 statute, agreeing to give up all parental rights to the child.

A few days after the child's birth in May 2005, Browne and D'Alleva executed a written acknowledgment of paternity, and Browne's name was listed on the birth certificate. A few months later, Browne refused to sign papers waiving his parental rights and consenting to joint adoption of the child by D'Alleva and her partner.

D'Alleva filed a lawsuit against Browne seeking an order terminating his legal parental rights and he counter-sued, seeking an order recognizing his joint custody and visitation rights. D'Alleva withdrew her suit, but moved to dismiss Browne's, citing the 1970 law and the waiver he signed at the time he donated sperm.

Judge Riley rejected D'Alleva's reliance on the 1970 law, agreeing with Browne's view that the legislative intent of that act was to ensure that the husband of a woman artificially inseminated from donated sperm has legal parental rights. Legislators at that time did not contemplate the “unique” circumstances of an unmarried lesbian raising her child with her partner, Riley found.

Riley also agreed with Browne regarding the fertility clinic consent form, noting that federal courts have recognized a constitutional right under the Due Process Clause for biological fathers to seek custody and visitation with their children. Waivers of such constitutional rights must normally be explicit.

Riley put significant weight on the acknowledgment of paternity form Browne and D'Alleva signed after the child's birth and his name on the birth certificate as concrete evidence that the mother acknowledged him as the father, not merely a sperm donor.

Riley's ruling does not mean that Browne will necessarily win his claim for joint custody, but merely that he has a right to pursue the lawsuit as the child's biological father. The court must determine the relative parenting qualifications of Browne and D'Alleva, and whether recognizing him as a legal parent will serve the child's best interest. Many courts have found that a child is best served when the co-parent in residence is accorded legal rights so she or he can exercise day-to-day parental decision-making, a consideration that works against Browne's claim and in favor of the adoption rights of D'Alleva's partner. A few courts, in the US and Canada, have decided a child can have three legal parents, a solution that would give something to both Browne and D'Alleva.

D'Alleva has the option of appealing Riley's ruling; otherwise Browne's claims will be heard on their merits.