Jane the Virgin, A Wonderful Mom

 This guest post if courtesy of Katey Green, Regent Law 3L, and current Wills, Trusts & Estates student:

Jane the Virgin is a television show filled with all things drama, religion and family law. Jane is a young Catholic Latina who has sworn to save her virginity until marriage. One day Jane goes in for a routine appointment with her gynecologist and is artificially inseminated by accident. She was inseminated with the sperm of a wealthy hotel owner that was meant for his wife in the next room. His wife had his sperm frozen and was planning the insemination without his knowledge. Once Jane realizes she is pregnant, she is prescribed the abortion pill but due to her religious beliefs, she declines to abort the baby. To make matters more interesting, she is engaged, and her fiancé only wants to proceed with the marriage if she places the baby up for adoption. By the end of the first episode, Jane decides that she will carry the baby to term and will give the baby to the hotel owner and his wife.

Jane’s story would be a fantastic family law hypothetical. What would happen if Jane decided she wanted to keep the baby herself? Although the hotel owner is the biological father, biology is not always controlling regarding parentage and because Jane was inseminated, the hotel owner is a sperm donor and Jane is considered a traditional surrogate. In Virginia, a sperm donor who donates for the purpose of assisted reproduction is not the parent of a child conceived through assisted conception, unless he is married to the mother and consented to the insemination. Additionally, if Jane were to marry her fiancé prior to giving birth, there is a rebuttable presumption that Jane’s husband would legally be considered the father of the baby under the marital presumption that a child born to a married woman is also the child of her husband. In that case, the hotel owner would have to present strong evidence that he is the true father.

There are all sorts of legal issues present and although Jane should sue her doctor for malpractice, there is now a life to consider apart from her own. The baby biologically belongs to her and a man she does not intend to wed. Should she have more of a right to the baby because she is the child’s carrier? Can she get child support from the hotel owner? Because the hotel owner did not have knowledge of his sperm being donated, should he have fewer rights to his child? There seems to be no easy answer in Jane’s case. She has been presented with a huge moral dilemma.

Although she had no intention of being a mother to this baby, her decision to give the gift of life despite all the present challenges, makes her a wonderful mom.  She just might be a good example for family restoration too.