By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
By Jeff Balke
On paper, their initial agreement had the markings of an unusual but successful partnership. He was gay. She was lesbian. They were both unmarried. According to her attorney, they did not know each other all that well and had met through a hairdresser. She wanted badly to conceive a child, and he was willing to oblige.
So when Sharon Sullivan and Brian Keith Russell signed a "co-parenting agreement" in February 2003, these star-crossed nonlovers probably had good reason to hope for a scientifically engineered, legally linked, happy family. Two families, actually -- two families that would be separate (but equal), as their contract spelled out.
Russell would provide Sullivan with his sperm so that she could attempt artificial insemination, and she would keep trying until it produced offspring.
"Any child born as a result of the donor insemination procedure will be the child of Brian Keith Russell as if he and Sharon Sullivan were married at the time of conception," the agreement states. "Russell will be named as the father on the child's birth certificate." On top of that, the two parties agreed to share child support and custody, with Sullivan furnishing the primary residence for the kid.
It wasn't your typical boy-meets-girl scenario, and by the time their daughter was born on March 2, 2004, their pact had fallen apart. In the beginning, the two had just set out to make a baby -- albeit in a hands-off, nontraditional way. By the end of their precedent-setting court battle, they might just make legal history as well.
Brian Keith Russell's attorney at the time had drafted the contract, but Sharon Sullivan signed on without getting legal advice, an omission that later became an issue in court.
"You'll have to ask her to get exactly what she wanted to do, but she wanted to have a child. And perhaps she was so desperate to have a child she didn't consider all the ramifications of what that meant," says Peggy Bittick, her lawyer. "After she entered into the agreement, she started finding out some things about him that made him a less-than-desirable parent." (Sullivan and Russell both declined interviews; the trial court file has been sealed.)
Their first effort to conceive, in February 2003, was unsuccessful; a second try that March resulted in pregnancy but ended in miscarriage. Details remain unclear about why their relationship turned sour. Bittick claimed in legal documents that Russell's departure for a romantic getaway in Paris at that mournful, strained juncture upset Sullivan. Regardless, by that June both got what they wanted: a child on the way.
Before the birth, the "couple" passed back and forth a revised "donor insemination agreement." Sullivan's life partner was added in the negotiations, and the new contract appeared to absolve Russell of his role as father, returning him to mere donor status. However, this second agreement was never signed.
In the final trimester, Russell's then-lawyer, Debra Hunt, sent Sullivan's attorney a letter. "In the spirit of co-parenting it would be appropriate for Mr. Russell to attend the birth of his own child," wrote Hunt. "Please ask Ms. Sullivan to communicate with Mr. Russell as soon as possible when the child's birth is imminent."
That never happened. But that didn't mean Russell didn't intend to stay involved with his daughter. Less than a month later he filed a lawsuit against Sullivan, alleging breach of contract, seeking a determination that he was the child's father and petitioning to establish his parental rights.
The suit poses a prime dilemma for Texas family courts, however. State law allows legal action for men "whose paternity of the child is to be legally adjudicated." But those same statutes take a dim view of sperm and egg donors, barring them from any parental claims.
Russell argued to state District Judge Bonnie Hellums that, unlike an anonymous sperm-bank depositor, he was known to the mother and even had obtained the parenting agreement obligating him to be an active father.
Hellums refused Sullivan's requests to throw the case out, prompting the mother to file a challenge to the ruling with the 14th Court of Appeals.
Appellate justices called the law's conflicting language a "paradox" and even asked the Texas Attorney General's Office for a friend-of-the-court brief on what it called a "matter of great public concern." The AG's brief concluded that Russell had legal standing. The 14th Court agreed, in a majority opinion authored by Justice Kem Thompson Frost last month.
Adele Hedges, the 14th court's chief justice, weighed in with a concurring opinion: The law "does not state that a donor can never be a parent under appropriate circumstances." She also noted that Russell isn't basing his legal claim on simply being the provider of the sperm.
Bittick says, "It's very bizarre because there is not a provision under the family code -- we believe -- that allows him to have standing to even assert his parentage in this case."
She is planning an appeal to the Texas Supreme Court. "We contend that if that's the situation, that any guy who goes to a cryobank or a sperm bank and makes a donation -- all of those guys could come back and have hundreds of people say, 'Oh, well, you owe me child support now.' "
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."
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.