Sperm Donor Has No Parental Claim To Child Born To Lesbian Couple

[Photo courtesy National Institute of Heath]

A Pima County judge was correct in ruling that a man who donated his sperm so a married lesbian couple could have a child does not have parental rights to the child, according to the Arizona Court of Appeals.

Raymond J. Doherty and his then-girlfriend became friends in 2015 with Giovanah L. Leon and Dominique Leon, who wished to start a family together. That same year Doherty agreed to donate his sperm which would be used to impregnate Giovanah.

The women, who married in January 2016, promised to not seek child support from Doherty, who in turn agreed he would not claim any parental rights.

Giovanah gave birth in April 2016 and both women were listed as parents on the child’s birth certificate. However, Giovanah was arrested later that year, eventually being sentenced in November 2017 to 18 months in state prison for felony aggravated assault.

With Giovanah in prison, Dominique Leon became the child’s primary caregiver. Doherty and his girlfriend remained family friends and even babysat the child on “numerous occasions,” according to court records.

In January 2018, Doherty had a DNA test performed without the women’s knowledge to document his biological parentage of the child. A few months later while babysitting he refused to return the child to Dominique and made allegations about her to Arizona Department of Child Safety (DCS).

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The child was placed with Dominique’s family while DCS investigated Doherty’s allegations, which were found to be unsubstantiated.  Afterward Dominique ceased all contact with Doherty, who filed a special paternity petition in May 2018.

In December 2018, Judge Cathleen Linn of the Pima County Superior Court granted Doherty weekly parenting time even though the issue of legal paternity was not yet resolved. Doherty’s parenting time consisting of 28 hours a week with some overnight visits was reaffirmed in April 2019.

Linn eventually denied Doherty’s petition for standing as the child’s legal parent. Doherty then appealed to the Arizona Court of Appeals in August 2019, the same month Giovanah, 24, completed her prison sentence.

The appellate court held oral arguments on July 16 followed 12 days later by an opinion authored by Chief Judge Garye Vasquez. The opinion, concurred with by Presiding Judge Christopher Staring and specially concurred with by Judge Sean Brearcliffe, affirmed Linn’s denial of parental rights to Doherty.

Vasquez’s opinion acknowledges that Doherty’s efforts to be legally recognized as the child’s father involved two competing Arizona paternity laws. The first presumes parental rights are afforded to a married couple, even if one member of the couple is not the child’s biological parent.

The second law presumes parentage based on genetic-testing. Both legal presumptions were enacted before same-sex couples became commonplace.

According to the court of appeals’ opinion, if two or more presumptions apply then the superior court judge must determine which one controls based on the facts with “considerations of policy and logic.” And that, according to Vasquez, is what Linn did after conducting an evidentiary hearing.

Vasquez notes states are permitted to distinguish between the rights of differently situated parents, which in Arizona means parents “with an existing parental relationship, either in fact or law, are entitled to the highest constitutional protection.”

In addition, a biological father who is not married to the biological mother or not listed on the birth certificate “has no immediate right to custody…unless paternity is judicially established.”

The appellate opinion notes Linn also ruled Doherty’s actions in not seeking paternity for two years after the child was born supported the Leons’ contention that Doherty donated his sperm with no intention of taking on parental rights or responsibilities.

And although Linn was not required to consider the best interests of the child, the court of appeals pointed out she did so when determining Dominique would retain parental rights as the parent “with the strongest history with the child.”

The appellate ruling takes effect Aug. 28 unless Doherty files a petition for review to the Arizona Supreme Court. That’s the same date Giovanah and Dominique Leon are scheduled to appear in Pima County Superior Court for a pretrial conference in their divorce case.

It is unclear whether Doherty continues to have a non-parental relationship with the child.