Hartley, Maxwell, & Castellano Attorneys at Law
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Let Us Help You. Call Today. 805-232-5808

Who's the Daddy? Part 4.

We've looked at the primary three scenarios for establishing paternity, or parentage, of a child when the child is conceived, as we termed it, "the old fashioned way."

Now we will look at establishing paternity, or parentage, of a child when that child is conceived by artificial means, often termed "in vitro fertilization[1]" (IVF) or "artificial insemination[2]" (AIS). Both are types of "assisted reproductive technology[3]" (ART) but, please note, all types of ART are not discussed in this post.

Yes, this post is going to be boring reading. However, if you are an IVF or AIS parent, or contemplating becoming one, this is important information and  we at Hartley, Maxwell & Castellano believe you should not proceed without it.

Conceived using AIS or IVF during marriage.

If the child is conceived through the use of AIS or IVF while the two people designated as the child's parents are married, the child is presumed to be the child of the marriage; thus, the mother is the person who carried the child, and the mother's husband will be the child's presumed father.

In this case, even if the biological material used to create the child came from a third party, that third party will have no claim to be the child's presumptive father, provided the biological material was either a) placed in the care of a physician or laboratory prior to fertilization of the mother, or b) subject to a binding contract entered into prior to the fertilization of the mother. To be absolutely safe, I suggest both using a physician's services to receive the biological material and fertilize the mother and ensuring that there is a contract in place regarding same. Most ART facilities have contracts they insist be completed before they will engage in assistive reproductive technology involving a third party's biological contributions. They have good reason.

Conceived using AIS or IVF outside of marriage.

This is a little trickier. If the child is conceived outside of marriage in a situation of "self help" which involves sexual intercourse or through use of, say, a common kitchen implement with no doctor present at conception, and with no binding contract in place prior to conception, this will be treated just as though the child was conceived the "old-fashioned" way. See Who's the Daddy? Parts 1-3.

If the child is conceived outside of marriage through AIS or IVF, in which the biological material used to create the child was either, as stated above, a) placed in the care of a physician or laboratory prior to fertilization of the mother, or b) subject to a binding contract entered into prior to the fertilization of the mother, then the person who contributed the biological material for the child will have no claim to the child as its father on the basis of biology.

On the basis of biology.

On the basis of biology, I said.

Many, too many, women are going through AIS or IVF procedures, thinking they have protected themselves and their child against a claim by their lover, or partner, or "friend," by using both the ART facility and putting in place a binding contract... only to engage in conduct that gives the person with whom they live the opportunity to become a "7611(d)" father or parent, whether that "7611(d)" parent has any biological relationship to the child or not.

What is a "7611(d)" parent? To find that out, you must read next week's post. It might be the most important post in this series.


[1] In vitro fertilization: a complex series of procedures used to treat fertility or genetic problems and assist with the conception of a child. During IVF, mature eggs are collected (retrieved) from your ovaries and fertilized by sperm in a lab.

[2] Artificial insemination (AIS) is the deliberate introduction of sperm into a female's uterus or cervix for the purpose of achieving a pregnancy through in vivo fertilization by means other than sexual intercourse.

[3] Assisted reproductive technology (ART) is any technology used to achieve pregnancy through procedures such as fertility medication, artificial insemination, in vitro fertilization and surrogacy.

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