27 April 2015
ByAppeared in BioNews 799
A man who provided sperm to a female friend who then used it to conceive without sexual intercourse has been awarded parental rights by the Virginia Court of Appeals in the USA.
Robert Boardwine provided sperm to Joyce Bruce, a long-term friend who wanted to have a child alone, who inseminated herself using a turkey baster. The parties did not have sexual intercourse.
After a number of failed attempts - and two unsuccessful donor insemination procedures at a fertility clinic using anonymously donated sperm - Bruce became pregnant in 2010 with Boardwine's sperm using the same home-insemination procedure they had used previously.
During the pregnancy Boardwine would visit and bring gifts for the baby, but their relationship began to decline after a disagreement over a name for the child. After this point, the parties did not speak for five months. Bruce did not inform Boardwine of the birth and did not include his name on the child's birth certificate.
Although contact was initially resumed, Bruce described the visits as 'strained' and the visits then stopped at her request, after which Boardwine brought an application for custody and visitation rights over the child.
The ruling shows how Bruce was under the impression that if she became pregnant without sexual intercourse then the biological father would not be entitled to parental rights.
She also said that her expectation was that after the birth Boardwine would visit just as a friend. Boardwine, on the other hand, contended that he always intended to be involved with the child and expected to be part of the child's life. While they had discussed creating a contract outlining the terms of the agreement, no such document had been created.
After Boardwine's parental status was confirmed by a DNA test, a lower court found that at the time of donation the parties had intended for Boardwine to become a legal father, and that is was in the best interests of the child to award Boardwine custody and visitation rights.
The Virginia Court of Appeals then had to determine if Boardwine was a 'donor', as if so he would not be entitled to parental rights. A donor is defined under State law as someone who contributes sperm or eggs for use in 'assisted conception'. This is, in turn, defined as a pregnancy resulting from 'intervening medical technology'.
Ruling that the State's assisted conception statue did not apply to Boardwine, Judge Stephen Cullough held: 'The plain meaning of the term "medical technology" does not encompass a kitchen implement such as a turkey baster.' Boardwine was not a sperm donor and was entitled to parental rights.
Bruce has the right of appeal to the Virginia Supreme Court. It is not yet clear whether an appeal will be pursued.