In our post-Obergefell world, it is expected that the courts will be grappling with a variety of same-sex family law issues. One group of such issues relates to artificial reproductive technology (“ART”), medical technology used to achieve pregnancy using techniques such as surrogacy, sperm donorship, and in vitro fertilization.
In In re P.S., No. 02-16-0008-CV, 2016 Tex. App. LEXIS 11657 (Tex. App.—Ft. Worth Oct. 27, 2016, no pet. h.). the Fort Worth Court of Appeals was asked to consider the parental rights of a man who donated sperm to a woman who wanted to raise the child with her same-sex partner.
In P.S., mother and father were friends. Mother, who is gay, wanted to have a child, so she asked father to donate sperm. Father collected his sperm and gave it to mother, who inseminated herself and conceived a child. When the child was born, father signed an acknowledgement of paternity and the child’s birth certificate.
After the child was born, father lost contact with mother for a short period of time. Mother then married her girlfriend, rescinded the acknowledgment of paternity that father had signed, and asked father to relinquish his parental rights to the child. Father sought assistance from the Office of the Attorney General (“OAG”) because he wanted to be able to have possession of the child.
The trial court signed an order establishing the parent-child relationship between the child and father, appointed father and mother joint managing conservators, ordered father to pay child support, and set up a possession schedule for father. Mother appealed, arguing, in pertinent part, that father should not be considered a parent because he was simply a “donor” because the Texas Family Code provides that a “donor” is not a parent of a child conceived by assisted reproduction.
The Fort Worth Court of Appeals analyzed the pertinent provisions of the Texas Family Code. The court found that, while the Family Code does state that a “donor” is not a parent of a child conceived by means of assistive reproduction, a “donor” is defined as “an individual who provides…sperm to a licensed physician to be used for assistive reproduction. Because father provided his sperm directly to mother and not through a licensed physician, he did not meet the statutory definition of “donor.” Therefore, the Family Code did not prohibit him from being named as a parent. The court of appeals affirmed the trial court.