Posted by Nydia Streets of Streets Law in Florida Paternity
What is a sperm donor under Florida law? Parties who agree to have a child via at home insemination kits likely do so to save money involved with going through a laboratory to complete in vitro insemination. How does this process affect paternity? This was an issue in the case Enriquez v. Velasquez, 5D21-1542 (Fla. 5th DCA November 3, 2022).
The parties to this case agreed to have a child together. They conceived the child via an at-home insemination kit. The father filed a petition to establish his paternity and to obtain a parenting plan. The mother answered admitting the father was the biological father and that a parenting plan should be established. A temporary parenting plan was entered granting time-sharing to the father approximately half of each week. A trial was later held on the petition and the parties stipulated the following issues needed to be resolved by the court “(1) the amount of timesharing that each party would have with the child, (2) their resulting child support obligations, (3) which party’s address would be used for purposes of a ‘school designation,’ and (4)who would claim the child as a tax exemption for federal income tax purposes.”
The trial court found the mother had no objection to the father having time-sharing, that the father had been a constant presence in the child’s life and that both parties care for and love the child deeply. Despite these findings, the court awarded no time-sharing to the father and ruled on its own that the Florida Statutes regarding the rights of sperm donors barred the father’s claim to establish paternity. It therefore dismissed his paternity petition, and the father appealed.
The appellate court first noted the language of the statute concerning sperm donors: “The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement under s. 63.213, shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children. [. . .] ” § 742.14, Fla. Stat.
The court went on to note that the trial court correctly assessed that the father had not executed a preplanned adoption agreement. It also correctly concluded that the father and mother were not a commissioning couple who had used assisted reproductive technology in the conception of the child, acknowledging “that a ‘commissioning couple’ was defined in section 742.13(2), Florida Statutes (2020), as the ‘intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents,’” and recognizing the definition of “assisted reproductive technology,” as “those procreative procedures which involve the laboratory handling of human eggs or preembryos, including, but not limited to, in vitro fertilization embryo transfer, gamete intrafallopian transfer, pronuclear stage transfer, tubal embryo transfer, and zygote intrafallopian transfer.” See § 742.13(1), Fla. Stat.
Concluding the father was not a sperm donor as indicated in the statute, the appellate court ruled “Accordingly, we reverse the final judgment denying and dismissing Enriquez’s petition for paternity with prejudice. We remand with directions that the trial court immediately enter a final judgment granting Enriquez’s petition and finding and establishing him as the legal father of the minor child. The trial court is further directed to adjudicate forthwith the issue of timesharing, together with the other issues that were stipulated to by the parties to be resolved at trial, taking into consideration any additional evidence that may be presented by either party so as to provide for the current best interests of the child.”
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