Say a woman gets a gay friend to donate sperm and then dies in childbirth. Her identical twin sister claims a “genetic connection” to the child and demands custody. The sperm donor decides to contest it and sue for custody. Who should win?
In my limited understanding, the biological father has a pretty much irrevocable claim to custody in a situation like this. Why shouldn’t he? And for what reason would the aunt’s relationship with her sister give her a stronger claim than that of the biological father?
Whoever will take better care of the kids.
Without anymore facts I can’t really answer that question.
ETA: Twhitt, he is a sperm donor, and therefore would not be treated as a father in a custody dispute. The rational being that a sperm donor doesn’t make any commitment to the mother or the children.
Sperm from a sperm bank may fit into your definition.
But between friends that is probably a different situation.
I seem to recall from a previous thread that there was no case law on the question of whether a person who donates (even anonymously) to a sperm bank, and who is tracked down later, can be successfully sued for child support.
I wouldn’t put anything in a genetic connection, but just consider her her sister. As such you have the biological father vs the sister of the deceased mother. IMHO a lot would depend on their individual circumstances.
In my state, a biological parent automatically wins a custody battle against any third party, unless the parent can be shown to have abandoned the child or to be otherwise unfit. Unfortunately, the gay factor may count towards him being found unfit. I think there was a case a few years ago that held that being gay can’t be considered a per se ground for finding someone unfit…but the reality is that gay parents are facing an uphill battle.
A sperm donor has no responsibility to the child and therefore has no right to the child. The grandmother of the child probably has more right than the aunt even.
I think the sperm donor would win. By contesting he assumes responsibility of his child. Being the biological father he has more right than the aunt (the fact that she is a twin doesn’t matter, she is a different individual than the mother).
That’s not necessarily true, at least in Pennsylvania:
Note: I have not heard anything about this getting reversed on appeal, so I assume it stands.
Whoever would be the better parent should get custody. Access arrangements for the rest of the family would be a good idea too.
Depends what the OP means by ‘sperm donor.’ Was he going to just hand his sperm over and never see the child, or was he going to take an active part in raising the child, as is sometimes the case?
It wouldn’t make any difference that the sister is a twin. She’d have no more or less claim than any other sibling.
I’d say it shouldn’t make any difference that the bio dad is gay, but as **Oakminster **points out, this may count against him when it comes to deciding who is the most fit to take custody of the child.
I think the most important factor would be exactly how the “sperm donor” arrangement was worked out. A sperm donor would normally waive all legal rights and responsibilities regarding the child, but if the mother and sperm donor did things informally then he may still have parental rights. In that case I don’t think there’s any way the sister would get the kid unless she could show that the bio dad was unfit.
Generally sperm donors sign away parental rights when they donate sperm. No different than if the child had been adopted. If Brainiac4 and I die, our son’s biological parents have no right to him.
In the Pennsylvania case the gentleman in question was more than a “sperm donor” - he was a friend of the couple’s who in addition to providing sperm, had taken an interest in the children’s lives and provided financial support in the past.
If the sperm donation is a more casual arrangement, then he probably gets precedence assuming he wants it. But this should never be done casually unless you don’t mind later providing child support.
If we’re talking donor as in dropped the sperm off at the bank and has never met the child, it would be tricky to establish he’s the father at all. If he and the woman had reached an agreement for him to give her his sperm and he subsequently was the named father on the birth certificate then there isn’t anything to contest, he’s the father (gay or not).