Understanding Reproductive Negligence in Virginia

Understanding Reproductive Negligence in Virginia

Bull is an American legal drama that airs on CBS. In the show, Dr. Jason Bull works at a prolific trial consulting firm.  In the episodeChild of Mine, a white couple gives birth to their baby.  Confusion ensues when the couple realizes that their baby is brown.  It is soon revealed that the fertility clinic that the couple used to conceive mistakenly swapped the father’s sperm with that of another couple. The biological father of the baby then provides notice to the white couple that he intends to seek full custody of the baby.

Although rare, fertility clinic mistakes have occurred within the United States. These mistakes, known as reproductive negligence, cause a multitude of harm to all parties involved. For instance, in one reproductive negligence case out of New York, a couple’s embryo was accidentally implanted into a stranger. When the couple asked to comment on how this affected them, the Wife stated “[a]ll of a sudden my brain went to, I didn’t get to bond with my baby. I wasn’t able to carry him. I wasn’t able to hold him. I wasn’t able to feel him inside of me.” Unfortunately, reproductive negligence can lead to lengthy and confusing custody battles. How would Courts in Virginia handle a custody dispute caused by reproductive negligence?  

Currently, there are no documented court cases in Virginia relating to reproductive negligence and Virginia does not have laws to protect women who might find themselves in this situation. There are many laws in place to protect couples who have a baby through a fertility clinic. Virginia Code § 20-158 provides that unless the birth is facilitated through a surrogate, the “gestational mother of the child is the child’s mother,” and “the spouse of the gestational mother of a child is the child’s other parent.” 

This code section further clarifies that “a donor is not the parent of a child conceived through assisted conception unless the donor is the spouse of the gestational mother.” This is the general rule for determining parentage of a child conceived through assisted conception. However, Virginia’s laws do not address how parentage is determined when reproductive negligence leads to improper insemination of the carrying mother.

According to Virginia Code § 20-49.1(A), “[t]he parent and child relationship between a child and a woman may be established prima facie by proof of her having given birth to the child,” however a woman other than the one who gave birth to the child may commence an action to determine parentage under Virginia Code § 20-49.2.

A biological parent, such as the biological father in the television show, could seek to establish his parentage under Virginia Code § 20-49.1. This code section provides that a man can establish his parentage of a child by:

  1. taking a scientifically reliable genetic test which affirms at least a ninety-eight percent probability of paternity; or  
  2. by a voluntary written statement of the father and mother made under oath acknowledging paternity.  

A custody dispute, like the one shown in the show Bull, would likely involve the parties disputing which of the two code sections discussed above should apply in this particular situation.  

Reproductive negligence is rare, but custody issues are not. If you or a loved one find yourself facing such an issue our office can help. Our attorneys have fought for parental rights, custody arrangements, visitation, and more. At Phillips & Peters, we want to help you move forward with any of your family law issues. Call our office today or schedule a consultation online to get started.


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