Virginia Statute Gives Birth To Another Legal Contradiction

One of the many frustrations of the law is that simply reading the statutes doesn’t give a good understanding of what the law actually means. For example, when the word “and” in a statute can be interpreted to mean “or”, the average citizen has little hope of understanding the law (despite the fact that ignorance of the law is not a defense to criminal liability). Indeed, the divorce between legality and reality can be supremely maddening. The recent child custody battle in Virginia over Lillian Breit-Masons will not do anything to resolve the paradox though.

In 2008, William Breit and Beverly Mason were having a difficult time conceiving a child. Although the long-term Virginia couple was unwed, a physician agreed to use their reproductive material, Briet’s sperm and Mason’s egg, to fertilization Mason. During Mason’s pregnancy, the two signed a custody and visitation agreement. After Lillian was born, they also signed a statement declaring Breit to be the biological father. Breit agreed to cover his new daughter in his health insurance and the couple decided that Lillian would share both their last names as her legal last name. Three years later, however, Mason began denying Breit his visitation rights on the theory that Breit wasn’t Lillian’s legal father.

Mason rests her entire case on a Virginia statute which denies legal parenthood to a sperm donor unless the sperm donor is the mother’s husband. However, it is an accepted premise of family law that any decision regarding child custody or visitation be done in the child’s best interest; depriving Lillian of her father would not be in her best interest. Due to the clear-cut language of the statute though, the issue before the Virginia Supreme Court is whether the statute is legal within the framework of family law.

Although the statute is clear in a literal meaning, the statute’s purpose is not as clear. Mason insists the statute is intended to prevent sperm donors from being fathers, even if they are in reality the biological fathers. If this statute wasn’t in place, sperm donors who have never met the mother could needlessly interfere with her relationship with the child. The statute recognizes this by including an exception for husbands, the one man the law can be certain has a pre-existing relationship with the mother.

Breit would counter that the suggested purpose was only for anonymous donors, not actual parents. The intent of the statute could not prevent donors who have a pre-existing relationship with the child, because if it did, it would create a legal absurdity in which an actual father could not be a legal father. The statute uses the husband exception to affirm this reading because the husband would be a pre-existing caregiver for the child. Breit had cared for his daughter over Lillian’s three years of life and it would not be in Lillian’s beset interest to be suddenly deprived of her father at such a young age.

Like every case in the law though, the Mason-Breit case has wider implications than either party suspects. If Breit‘s legal fatherhood is terminated, Breit would not be liable to pay for child support. Stranger than the self-inflicted loss of child support by Mason, however, is that in this case a man actually wants to be a father while many women are often begging for their child’s father to be the man they had pretended to be when the couple had first created the child. This case highlights the sexism prevalent in family law, although the sexism exists in a manner most people would not consider.

Children have genes from both parents, yet the law has decided that the mother is the de facto parent. Using the Virginia statute as an example, it is the man, the “sperm donor”, who must prove his worth as a parent by being in a committed relationship with the mother, rather than the child. Both parts of the statute assume the mother is essential to the relationship. Granted, it is women who are burdened with pregnancy and the pain of childbirth, but reproductive organs are not something a person can choose to have. Since a person’s ability to choose his or her path is partly what determines the law’s ability to discriminate, the law’s assumption that women are always the essential caregiver is an insult to women and men.

This prevailing assumption is omnipresent in family law, but the assumption does not serve children’s best interest, family law’s main principle. The sad fact is, although all children come from women, not all women are good mothers. The Virginia Supreme Court should not only abolish the statute, it should also abolish the hidden assumption which supports the statute.