When deciding whether a sperm donor qualifies as the “parent” of a minor child conceived via artificial insemination, a court should apply the paternity laws of the state where the insemination and birth took place, a unanimous panel of the North Carolina Court of Appeals has ruled.
Virginia resident Ericka Glenn and her partner wanted to conceive a child together. Glenn asked her friend Anthony Garrelts to serve as a sperm donor and the two entered into a “verbal contract.”
The artificial insemination and conception occurred in Virginia, where Glenn lived throughout her pregnancy and for the child’s birth in December 2011. Glenn was the only parent listed on the birth certificate.
In late 2012, Glenn, her partner, and Garrelts all appeared in Virginia state court to have Garrelts voluntarily sign over his parental rights so that Glenn and her partner could formally adopt the child. The outcome of the proceeding is unknown, with no copy of the court order in the record.
In 2019, the Warren County Department of Social Services in North Carolina (DSS) filed an action alleging that Garrelts was the father of the child and that he was obligated to pay child support.
Garrelts objected, arguing that he was under no obligation to pay child support. He took the position that the law of Virginia applied, because that’s where the child was conceived and born. Pursuant to Virginia law, a sperm donor doesn’t legally qualify as a parent and therefore, he didn’t owe any child support, he argued.
The trial court disagreed, issuing an order adjudicating Garrelts to be the biological father of the child and ordering him to pay past due child support, obtain medical insurance for the child, and pay $50 in monthly child support going forward. Garrelts appealed.
Writing for a unanimous panel, Judge Darren Jackson reversed, holding that traditional choice of law principles directed the court to apply the law of the situs of the claim—in this case, Virginia.
“We conclude that a paternity law is substantive in nature and thus that the lex loci test should be applied,” Jackson wrote. “Under the unique circumstances of the present case, we conclude that the proper ‘situs of the claim’ of the parties’ paternity dispute is Virginia. Here, Virginia is the state where [Garrelts] and Ms. Glenn entered into a ‘verbal contract’ regarding the artificial insemination; Virginia is where the artificial insemination occurred; Virginia is where Ms. Glenn lived during the entirety of her pregnancy; Virginia is where the child was born; and Virginia is where the mother and child lived together for the first several years of the child’s life.”
Jackson explained that the parties’, and the trial court’s, debate about the full faith and credit doctrine was irrelevant to the dispute, because the case didn’t involve an existing judgment or order from another state.
“Based on the record, it does not appear that the minor child here has ever been the subject of any previous paternity or child support order, and thus there is no foreign order for us to credit,” Jackson wrote. “Rather, this case involves determining the paternity of a child who was conceived (via artificial insemination) and born in Virginia, but who is the subject of a child support action in North Carolina.”
Thus, the issue was whether to apply the substantive law of Virginia or North Carolina, Jackson said, with a choice between lex loci—the most traditional conflict of law doctrine, which provides that “matters affecting the substantial rights of the parties are determined by lex loci, the law of the situs of the claim”—or lex fori, which provides that remedial or procedural rights are determined by the law of the forum.
Traditionally applied in cases involving tort or tort-like claims, lex loci was the better fit for the substantive rights at issue, Jackson said.
“A ‘substantial right’ has been defined by this court as ‘a legal right affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which a person is entitled to have preserved and protected by law,’” Jackson wrote. “A law that formally adjudicates a person’s status as a parent (or non-parent) of a child meets this definition, as parenthood is one of the most fundamental protected rights in our entire legal system.”
Predictability discourages forum shopping
Applying the lex loci test, Virginia qualified as the proper situs of the claim, Jackson found. Garrelts and Glenn reached their artificial insemination agreement in Virginia, where Glenn spent the duration of her pregnancy and gave birth to the child, as well as living in the state for another several years after the child was born.
This result was supported by persuasive case law from other jurisdictions, Jackson added, and promoted predictable results.
“Under the lex loci doctrine, following the paternity laws of the state where the child is conceived not only fulfills the parties’ natural expectations, but helps ensure predictable and equitable results,” Jackson wrote. “If we were to accept DSS’s arguments—and hold that a paternity action is simply governed by the laws of whichever state the plaintiff decides to sue in—this would encourage forum-shopping, as a parent seeking a paternity determination could simply travel to whoever state has the most favorable laws.”
Mitchell G. Styers of Banzet, Thompson, Styers, & May in Warrenton represented Garrelts. He did not respond to a request for comment.
No brief was filed by the DSS.
The 13-page decision is Warren County Department of Social Services ex rel. Glenn v. Garrelts (Lawyers Weekly No. 011-103-21). The full text of the opinion is available online at nclawyersweekly.com.