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Purely legal questions of statutory and constitutional interpretation are ones which an appellate court reviews de novo.
Va. Code Ann. § 32.1-257(D) is an administrative, ministerial enactment. Its purpose is to ensure that the Commonwealth of Virginia's records accurately reflect the intended parent-child relationship. Where unmarried biological parents together undertake the process of assisted conception, voluntarily execute an acknowledgement of paternity naming the sperm donor as the child's legal father, and together enter into a binding agreement regarding custody and care, prohibiting the donor from ever establishing parental rights would be contrary to § 32.1-257(D)'s stated purpose and contrary to the Due Process Clause of the United States Constitution.
Mason and Breit were in a long term relationship and wished to conceive a child. The were not married. They executed a written agreement and their child was conceived by in vitro fertilization, using the Mason's eggs and Breit’s sperm. Mason and Breit entered into a written custody and visitation agreement providing Breit with reasonable visitation rights and agreeing that such visitation was in the child's best interests. After the child's birth, the couple executed an acknowledgement of Breit's paternity and listed him as the father on the birth certificate. The couple named her after Mason's paternal grandmother and Breit's maternal grandmother, and her last name is a hyphenated combination of their surnames. When Breit filed a petition for custody and visitation for the child, Mason filed a motion to dismiss. She argued that Briet could not be the child's legal parent because he never married her and the child was conceived through assisted conception.
Did Breit have fundamental right to make decisions concerning the child's care, custody and control, despite his status as an unmarried sperm donor?
The court held that as the parents lived together, jointly assumed rights and responsibilities, and voluntarily executed a statutorily prescribed acknowledgement of paternity, the Due Process Clause of U.S. Const. amend. XIV protected Breit’s fundamental right to make decisions concerning the child's care, custody and control, despite his status as an unmarried sperm donor. Thus, Va. Code Ann. §§ 20-158(A)(3)and 32.1-257(D) did not bar him from establishing legal parentage pursuant to a written agreement as authorized by § 20-49.1(B)(2)