Unmarried Father of Child Conceived By Assisted Reproduction May File Paternity Action

In a case of first impression, a Virginia Appellate Court held that a known sperm donor who, at the request of a woman to whom he is not married, donates his sperm for the purpose of uniting that sperm with that woman’s egg to accomplish pregnancy through assisted conception and who, together with the biological mother, executes an uncontested Acknowledgment of Paternity under oath, is not barred from filing a parentage action to establish paternity of the child resulting from the assisted conception.


The parties had cohabitated for several years and attempted to conceive naturally prior to turning to in vitro fertilization. Both parties voluntarily executed an Acknowledgment of Paternity identifying the donor as the father of the child, named the donor as the child's father on the child's birth certificate, and jointly represented to friends and family that the donor was the father of the child.


The Court held that the Virginia statute that provides “[a] donor is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother” (Va. Code § 20-49.2) must be construed so as to give full import to another Virginia statute providing that “(t)he parent and child relationship between a child and a man may be established by ... [a] voluntary written statement of the father and mother made under oath acknowledging paternity....” (Va. Code § 20-49.1(B)(2)). To do otherwise would result in the manifest absurdity that an unmarried father of a child conceived through assisted reproduction is barred in virtually all circumstances from establishing parental rights. See: Breit v. Mason, 59 Va.App. 322, 718 S.E.2d 482 (Va.App. Dec 28, 2011).