Seminal Case

How donated sperm spawned a child -- as well as a likely landmark legal decision

Russell's attorney, Ellen Yarrell, noted to Hellums that her primary concerns were the daughter's right to know her father and his rights under the parenting agreement he originally struck with Sullivan.

Sullivan's counsel contended that the legislature had the opportunity to carve out a clause for co-parenting agreements such as this, but did not.

"In a way, to me, it shows that there's legislating from the bench" based upon the current ruling, Bittick says. "…It is important because it's going to create a wedge in that whole sperm donors' situation, where other men who didn't know they could be sued could be sued. Or other men who didn't think they had any rights can go back and assert rights."

Al Cameron

Some argue that may be a stretch. Still, the outcome of this case likely will stir up considerable interest because of the increasing incidence of assisted reproduction in general -- and particularly within the gay and lesbian community.

"Absolutely it's going to determine how we as attorneys formulate these agreements from now on," says Jerry Simoneaux, a local lawyer who specializes in relationship issues for gays and lesbians. "This happened after Texas created its law, so it was really ambiguous, and I understand why the court was really wrestling with it.

"It was just: 'Can we get him through the courthouse doors?' " Simoneaux and others note that the rulings thus far deal only with Russell's legal standing to sue. If that holds up, a judge or jury would consider the other facts -- including Sullivan's challenge of the initial agreement and whether Russell deserves parental status. "…Because if he's really just a sperm donor, then he will not be able to continue his case for parentage," Simoneaux says.

"This is one of the types of cases that lawyers read about when they're in law school, because it really does develop a very fine point on an ambiguous law." Simoneaux semi-jokes that, in light of the rulings, many lawyers are likely to be busy redrafting legal documents.

"I think what we're going to have to do is avoid that 'donor' language altogether if the two people want to share parentage."

Bittick says that she's found co-parenting agreements to be fairly common, although few participants resort to litigation when problems come up because of the high costs involved.

Simoneaux says that sometimes the agreements are even made without lawyers. He knows of one that never relied on any kind of formal, written contract.

"The reality is that there are a lot more options for people. A lot of us who are a little bit older, we pretty much felt that the family -- having kids -- was out of the picture," says Jack Valinski, vice president of the Houston Gay and Lesbian Political Caucus. "But we keep getting into these shady areas of the laws…

"Just as they say, well, you don't need to get married because you can write a contract between, you know, your partner and yourself, then when you're dealing with kids, it's even more so. Well, we're not sure that those contracts will be honored."

That's precisely what makes this case so important to the gay community. And while he hasn't personally met any lesbian who's gone to a gay man for artificial insemination and co-parenting, it does make sense, given the context.

Valinski explains that lesbians helped donate blood and cared for stricken gays in the early days of HIV and AIDS. "So we have a history of working together in the community for a common interest. And it would just seem now that we're sort of in the same predicament -- if we have male partners and they have female partners -- that if they want to have kids, who would they turn to first?"

For Sharon Sullivan and Brian Keith Russell, that answer may now be: someone different.

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