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Visitation Rights for Sperm Donors

A recent child visitation case in New Jersey has same-sex couples with kids across the country—including those in Florida—concerned about how future courts will decide similar cases. In short, according to an article in Slate, a NJ court ordered visitation rights for a sperm donor. The legal parents are two lesbian mothers who had written assurances that the sperm donor would have no role in the child’s upbringing. Now, however, the sperm donor changed his mind and wants visitation with his biological child. The New Jersey court sided with the biological father.

Should Florida parents who have used artificial insemination worry that a Florida court could rule similarly? What are the most important questions when it comes to artificial insemination and child custody?

Florida Law and Artificial Insemination

While certain states have begun granting visitation rights to sperm donors—even when those sperm donors previously agreed to remain clearly outside the upbringing of the biological child—Florida law isn’t as flexible. For parents who have conceived through artificial insemination, that’s a good thing.

Under Florida Statute, section 742.11, children born through artificial insemination or through sperm donation don’t have legal connections to a sperm donor. The law makes clear:

·     (1) “any child born within wedlock who has been conceived by the means of artificial or in vitro insemination is irrebuttably presumed to be the child of the husband and wife, provided that both husband and wife have consented in writing to the artificial or in vitro insemination,” and

·     (2) “any child born within wedlock who has been conceived by the means of donated eggs or pre-embryos shall be irrebuttably presumed to be the recipient gestating woman and her husband, provided that both parties have consented in writing to the use of donated eggs or embryos.”

Now, the language of the statute doesn’t account for newly legal same-sex marriage in Florida. However, it does make clear that the sperm donor will not be considered a parent under the law. Florida Statute, section 742.14 further clarifies that sperm donors do not have parental rights. The law specifically states:

·     “The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement . . . shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children.”

Will the court decide differently in the case of a same-sex married couple?

Recent Decisions Concerning Visitation Rights and Donors

Given that same-sex couples now enjoy the same rights and responsibilities as heterosexual married couples in the state of Florida, we should be able to presume that a court would look at a same-sex couple in the same manner as a married husband and wife of opposite sexes. Indeed, the Slate article emphasizes that many same-sex couples across the country are dealing with these visitation issues, but the outcomes likely wouldn’t be different if the couples “consisted of a man and a woman.”

And if we look at recent decisions that have interpreted Florida Statute, section 742.14, the courts have made clear that sperm donors aren’t entitled to visitation rights. To be sure, even when the sperm donor and the biological mother know one another’s identities, the biological father does not have parental rights.

While precedent suggests that Florida courts are firmly opposed to granting visitation rights to sperm donors, it’s important to have all the facts and to ensure that you’ve executed a proper agreement with the donor to prevent a contentious child visitation battle. Contact the Fort Lauderdale and Hollywood Law Offices of Steven A. Mason, P.A. for legal advice at 954-963-5900 or leave a message online.

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