'The term "medical technology" does not encompass a kitchen implement such as a turkey baster'

|The Volokh Conspiracy |

From today's decision by the Court of Appeals of Virginia in Bruce v. Boardwine:

[Joyce] Bruce wanted to conceive a child she could raise on her own, without the involvement of a father. Bruce apparently believed that if she became pregnant in a way that did not involve sexual intercourse, the biological father would not have a claim to any parental rights. To accomplish this goal, Bruce approached [Robert] Boardwine, a longtime friend, and asked him to be a sperm donor. After some hesitation, Boardwine agreed. Although the parties discussed a written contract regarding any resulting pregnancy, none was ever signed.

Boardwine explained [in the court proceeding that ultimately resulted] that he intended "to always be involved" with the child. According to Boardwine, the two agreed that Bruce would be the sole parent and that he would be able to see the child as little or as much as he wanted. He stated that he expected to be a part of the child's life, including attending the child's sporting activities and being involved in the child's educational and health decisions.

Bruce and Boardwine's relationship deteriorated around October 2010, when Bruce would not agree to Boardwine's suggested name for the child. After this argument, they did not speak until shortly after the child's birth, a period of about five months. Bruce did not inform Boardwine of the birth and did not list Boardwine on the birth certificate. Boardwine, however, learned about the birth and went to the hospital with friends and family. Bruce said that she never asked Boardwine for money or supplies and never asked him to visit or to care for the child. After she returned home from the hospital, Boardwine would come over to her home to visit. She characterized the visits as "[s]ort of strained." Boardwine was never alone with the child. Eventually, Bruce told Boardwine to "[s]top coming by." …

Boardwine initiated proceedings in the Roanoke City Juvenile and Domestic Relations District Court to establish his rights regarding the child, whom we will refer to as J.E.

Now Virginia law does have a statute under which men can donate sperm and no parental rights—or obligations—arise as a result. But that statute provides that a "donor is not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother," defines "donor" as "an individual, other than a surrogate, who contributes the sperm or egg used in assisted conception," and in turn defines "assisted conception" as

a pregnancy resulting from any intervening medical technology, whether in vivo or in vitro, which completely or partially replaces sexual intercourse as the means of conception. Such intervening medical technology includes, but is not limited to, conventional medical and surgical treatment as well as noncoital reproductive technology such as artificial insemination by donor, cryopreservation of gametes and embryos, in vitro fertilization, uterine embryo lavage, embryo transfer, gamete intrafallopian tube transfer, and low tubal ovum transfer [emphasis added].

And "medical technology," the court concludes, requires something more than a turkey baster:

The word "medical," in its ordinary use, means "of, relating to, or concerned with physicians or with the practice of medicine" and "requiring or devoted to medical treatment." The statute does not encompass all technology. Instead, its language is limited to "medical technology." The plain meaning of the term "medical technology" does not encompass a kitchen implement such as a turkey baster.

The examples listed in Code § 20-156 shed further light on the General Assembly's intent in crafting this statute…. "When general words and specific words are grouped together, the general words are limited and qualified by the specific words and will be construed to embrace only objects similar in nature to those objects identified by the specific words." … Bruce did not become pregnant through "conventional medical and surgical treatment." Furthermore, the examples of "noncoital reproductive technology" listed in Code § 20-156 involve procedures performed with the assistance of medical personnel. An ordinary kitchen implement used at home is simply not analogous to the medical technologies that are listed in Code § 20-156, nor does it constitute a "reproductive" technology under the plain meaning of the term….

A sound reading of the statute, it seems to me, even if I think that as a policy matter there's little reason to distinguish sperm donation where a doctor is involved from turkey baster donation without a doctor. And, as a result, Boardwine did indeed end up having some parental rights:

Boardwine's test established his paternity by a probability greater than 99.999%. The path to fatherhood may have been unconventional, but as the father of J.E., Boardwine was entitled to seek (and, as the trial court found, receive), visitation with his son.

Thanks to How Appealing for the pointer.