A Turkey Baster Case: Thanksgiving Present to Unwed Fathers

 

This guest post is from Jennifer Haskins, Regent Law ‘2021:

While a Virginia court informed the world that a methodical “use of a turkey baster” did not constitute artificial insemination, the Commonwealth did confirm that an unwed father still had a right to raise his child. Boardwine v. Bruce, 88 Va. Cir. 218 (2014), aff’d Bruce v. Boardwine, 64 Va. App. 623, 770 S.E.2d 774 (2015).

Robert Boardwine, a gay male, and Joyce Bruce, a lesbian, used a turkey baster to conceive a child, identified as J.E.B. By law, “artificial insemination” required a physician’s involvement. Here, no medical provider inseminated the mother. Both parties had orally agreed that Mr. Boardwine would have rights as the father. Id. Because Boardwine provided (1) genetic test results, establishing his paternity under Va. Code Ann. § 20-49.1, and (2) clear and convincing evidence, establishing him as the legal father under Va. Code Ann. § 20-49.4, the Commonwealth confirmed his rights as the father. Although the two individuals did not engage in conventional means of sexual intercourse, they had a child out-of-wedlock. Judge Dorsey of the Roanoke Circuit Court eloquently stated: “All that matters is that Mr. Boardwine provided sperm to Ms. Bruce and she became pregnant as a result.” Id. at 219. Thus, this was a case involving the rights of an unwed father desiring to raise his child.

In Boardwine, Judge Dorsey held: “An unmarried donor can establish legal paternity by demonstrating that the parties intended for him to be the child’s legal father.” Id. at 226. First, the father must provide scientifically reliable results (98% probability). Second, the putative father, in absence of a written agreement, must provide clear and convincing evidence that the parties intended him to be the father of the child. Id. at 227. In Boardwine, testimony from both parties confirmed the intentions of the father playing an active role in the upbringing of J.E.B. Ms. Bruce had informed Mr. Boardwine of the successful pregnancy when she stated, “We are pregnant.” Id. at 229. She stated the pregnancy was Mr. Boardwine’s birthday present. Id. They simply disagreed over the name of the child. Id.

Despite their disagreements, the plaintiff was physically involved in J.E.B.’s life. Id. He and his relatives visited J.E.B. at the defendant’s residence. He purchased gifts and diapers for J.E.B. Id. The plaintiff demonstrated he was fit to receive joint custody of the child. In the hearing at the Court of Appeals of Virginia, Bruce’s counsel even mentioned that Boardwine had placed the child on his health insurance. http://www.courts.state.va.us/courts/cav/oral_arguments/2015/salem/feb/1250_14_3.MP3. Hence, Boardwine demonstrated his intention to play an active role in the upbringing of his child.

Therefore, there is hope for unwed fathers’ rights in Virginia, and the move toward family restoration.