'At home' sperm donors can apply to become legal parents in Florida

The Florida Supreme Court has ruled that a donor does not automatically give up parental rights when providing sperm for 'at home' artificial insemination.

The case concerned Angel Rivera, who donated sperm to a same-sex female couple, Ashely Brito and Jennifer Salas, for 'at home' insemination in 2019. The couple had a child, married during the pregnancy, and were both listed on the child's birth certificate. When Brito and Salas later divorced, Rivera applied to the court for parental rights as the child's father. The lower courts rejected his application, citing state legislation from 1993 which states that sperm donors automatically relinquish parental rights. In a majority decision, the Florida Supreme Court overturned the lower courts' decisions, concluding that the 1993 legislation does not apply to donor insemination which took place outside of a fertility clinic setting.

'No party disputes that the child in this case was not conceived using assisted reproductive technology, as at-home artificial insemination does not 'involve the laboratory handling of human eggs or preembryos'... Thus, the situation, contemplated by the statutory scheme as a whole, did not occur here,' said Justice Jamie Grosshans, giving the majority judgment, quoting the legislation. 'As such, Rivera has not automatically relinquished his paternal rights and obligations to the child at issue, and his legal rights must be determined by other sources of law addressing paternity.'

Justice Grosshans clarified that the court's decision only concerned the 'narrow question' of whether the 1993 legislation applied. Therefore, the ruling did not establish parental rights for Rivera but rather confirmed that he is not automatically barred from making an application. The courts would then consider whether granting legal rights of paternity would be in the best interests of the child, under relevant state laws.

However, the court was divided and reached the decision at a four-three majority. The dissenting judges disagreed with the majority's narrow interpretation of a 'donor' under the 1993 legislation. They also warned that the ruling could lead to recognition of three legal parents, while legislation on parenthood is 'consistent' in recognising no more than two legal parents.

'From his conduct – leaving a sperm sample at the home of a couple he knew were prospective parents – we know enough to call [Rivera] what an ordinary speaker of English would call him: a donor,' Justice John Couriel said, giving the dissenting judgment.

He continued: 'That Salas and Brito have parental rights has never been disputed in this litigation, and there is no indication that either would forfeit those rights. But now, the majority authorises Rivera to become parent number three. This might be good or bad policy by the court's lights, but it is not our law.'

Judges in the UK have warned against 'at home' sperm donation in recent cases, as this is not subject to the same legal regulation as donation within a clinic, which can lead to complexities surrounding legal parenthood (see BioNews 1277 and 1281).