"Lost Boys" actor Jason Patric has won the right to argue for paternity of a son born through in vitro fertilization (IVF), thanks to a California court decision.
Patric is battling his ex-girlfriend Danielle Schreiber over custodial rights to their 4-year-old son Gus. According to The Hollywood Reporter, Patric and Schreiber had tried to conceive naturally before Schreiber was able to use Patric's sperm to conceive through IVF.
How can fathers like Patric retain rights to their children when IVF is involved?
Calif. Law Favors Mothers
If Patric and Schreiber had been married when he provided her his sperm for IVF, Patric may have been presumed the father of the child. However, California law assumes that an unmarried sperm donor is not the natural father of the child unless there is a separate agreement speaking to paternal rights.
When Schreiber cut off Patric's relationship with Gus in 2012, a court agreed that the law was on the mother's side. A 2005 court case involving a sperm donor who was a prior sexual partner reinforced this strict interpretation of California's law, denying paternal rights to the donor.
On the upside, these sperm-donor dads don't have to pay child support. On the downside, they have no rights to custody or visitation.
Patric appealed the decision, and three judges agreed on a broader reading of California law that allowed Patric some parental rights. The court looked at a number of circumstances that made Patric's situation different than that of a normal sperm donor, namely that:
While California law might exclude sperm donors from natural presumption of parenthood, it doesn't cut off proving paternity through other means, the court noted. A father can also establish paternity by receiving a child into his home and openly holding out the child as his natural son. These two laws may not be contradictory -- an unmarried couple who uses IVF to conceive can still prove paternity by conduct after the child's birth.
Schreiber and Patric will now have to go back before the trial court to argue over whether Patric "openly held" Gus as his son and if there is evidence of a "familial relationship."