RICHMOND, Va. – A state appeals court has sided with a Virginia Beach man who donated sperm to his longtime girlfriend, overturning a ruling that he lacked any parental rights after the couple split up.
A three-judge panel of the Virginia Court of Appeals last week overturned a lower court’s decision in the case of attorney Billy Breit, who hasn’t seen his daughter in more than a year. They ordered the case to be heard by a different judge.
Breit and Beverley Mason conceived their daughter through in-vitro fertilization. Before the birth, the couple signed a joint custody and visitation agreement in case they parted ways. They also signed an affidavit stating that Breit was the child’s biological father. They also agreed that the baby would have the hyphenated last name of Mason-Breit.
The couple split after the baby was 4 months old, and Mason abruptly stopped allowing him visitation about nine months after that, Breit said.
To this day, he hasn’t been given a reason, Breit said.
“We all would like to know the answer to that question,” Breit told The Virginian-Pilot ( http://bit.ly/ygQqGc).
Mason declined to comment except to say she would prefer to keep the matter private for the sake of the child.
Breit fought the matter, first in Juvenile and Domestic Relations Court, where he lost, and again in Circuit Court. Because he’s a practicing attorney in Virginia Beach, the judges all recused themselves. Retired Richmond Circuit Judge Theodore Markow was brought in to hear the case.
In arguing that Breit wasn’t the girl’s legal father, Mason’s attorneys cited a section of Virginia law that says “donors of sperm or ova shall not have any parental rights or duties for any child,” and another section that states a “donor is not the parent of a child conceived through assisted conception unless the donor is the husband of the gestational mother.”
Breit’s lawyers said those sections of law were meant to prohibit anonymous sperm or egg donors from making parental claims. And perhaps, they say, it harkens back to a time when certain legislators wanted only married couples to be parents.
In its opinion, the appeals panel called the lower court’s opinion a “manifest absurdity” that “ignores the intent of the legislature.”
Breit’s lawyer Kevin Martingayle said Markow’s decision creates “a very frightening situation.”
The ruling would mean “that any unmarried couple that engaged in any form of assisted conception would be participating in an activity where the father could one day be declared to have absolutely no parental rights,” Martingayle said.
But the General Assembly created another law that says a father can establish his rights as a parent through a “voluntary written statement” between the father and mother that acknowledges paternity, Breit’s lawyers said.
Mason can choose to appeal, but Breit says he hopes she will let the case return to Virginia Beach so they can work out an amicable solution.
By Tim McGlone
The Virginian-Pilot
© January 3, 2012