L.F. v. Breit

PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
Powell, JJ., and Russell, S.J.

L.F., A MINOR

v. Record No. 120158
OPINION BY
WILLIAM D. BREIT, ET AL. JUSTICE WILLIAM C. MIMS
January 10, 2013
BEVERLEY MASON

v. Record No. 120159

WILLIAM D. BREIT, ET AL.

FROM THE COURT OF APPEALS OF VIRGINIA

In these appeals, we consider whether Code §§ 20-158(A)(3)

and 32.1-257(D) bar an unmarried, biological father from

establishing legal parentage of his child conceived through

assisted conception, pursuant to a voluntary written agreement

as authorized by Code § 20-49.1(B)(2).

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Beverley Mason and William D. Breit had a long-term

relationship and lived together as an unmarried couple for

several years. They wished to have a child together. Unable

to conceive naturally, they sought reproductive assistance from

Dr. Jill Flood, a board-certified fertility doctor.

Dr. Flood performed two cycles of in vitro fertilization

(“assisted conception”). Each time, she retrieved eggs from

Mason, fertilized them outside her body using Breit’s sperm,

and transferred the resulting embryos into Mason’s body. Breit
was present for all stages of the in vitro fertilization

process and continued to live with Mason throughout the

resulting pregnancy.

Prior to the child’s birth, Mason and Breit entered into a

written custody and visitation agreement providing Breit with

reasonable visitation rights and agreeing that such visitation

was in the child’s best interests.

On July 13, 2009, Mason gave birth to L.F. Breit was

present for L.F.’s birth and is listed as the father on her

birth certificate. The couple named her after Mason’s paternal

grandmother and Breit’s maternal grandmother, and her last name

is a hyphenated combination of their surnames.

On the day after L.F.’s birth, Mason and Breit jointly

executed a written agreement, identified as an “Acknowledgement

of Paternity,” stating that Breit is L.F.’s legal and

biological father. 1 The couple jointly mailed birth

announcements naming Mason and Breit as L.F.’s parents. They

stated to friends and family that Breit was L.F.’s father, and

continued to live together for four months following L.F.’s

birth.

1
Mason and Breit used the acknowledgement of paternity
form promulgated by the Virginia Department of Health, Division
of Vital Records, pursuant to Code § 32.1-257(D).

2
 After the couple separated, Breit continued to provide for

L.F. financially. He maintained her as his child on his health

insurance policy and continued to provide child support. He

consistently visited L.F. on weekends and holidays, thereby

beginning to establish an ongoing parent-child relationship

with her. Breit took an active role in L.F.’s life until

August 2010, when Mason unilaterally terminated all contact

between Breit and L.F.

On August 24, 2010, Breit filed a petition for custody and

visitation in the Juvenile and Domestic Relations District

Court of the City of Virginia Beach. Mason filed a motion to

dismiss and the court dismissed Breit’s petition without

prejudice. In November 2010, pursuant to Code § 20-49.2, Breit

filed a petition to determine parentage and establish custody

and visitation (“petition to determine parentage”) in the

Circuit Court of the City of Virginia Beach, naming Mason and

L.F. (collectively “Mason”) as co-parties defendant. He filed

a motion for summary judgment, arguing that the acknowledgement

of paternity that he and Mason voluntarily executed pursuant to

Code § 20-49.1(B)(2) created a final and binding parent-child

legal status between Breit and L.F. Mason filed pleas in bar

asserting that, pursuant to Code §§ 20-158(A)(3) and 32.1-

257(D), Breit was barred from being L.F.’s legal parent because

3
he and Mason were never married and L.F. was conceived through

assisted conception.

At the hearing on the motions, the circuit court appointed

Jerrold Weinberg, an attorney who previously had been retained

by Mason to represent L.F., to serve as L.F.’s guardian ad

litem (“GAL”). The circuit court sustained the pleas in bar,

denied Breit’s motion for summary judgment, and dismissed by

nonsuit the remainder of Breit’s petition seeking custody and

visitation. Breit appealed the circuit court’s judgment to the

Court of Appeals.

The Court of Appeals reversed the circuit court’s decision

to sustain the pleas in bar. Breit v. Mason, 59 Va. App. 322,

337-38, 718 S.E.2d 482, 489 (2011). It held that

a known sperm donor who, at the request of a woman to
whom he is not married, donates his sperm for the
purpose of uniting that sperm with that woman’s egg
to accomplish pregnancy through assisted conception
and who, together with the biological mother,
executes an uncontested Acknowledgement of Paternity
under oath, pursuant to Code § 20-49.1(B)(2), is not
barred from filing a parentage action pursuant to
Code § 20-49.2 to establish paternity of the child
resulting from assisted conception.

Id. at 337, 718 S.E.2d at 489.

In reaching its decision, the Court of Appeals

“harmonized” Code §§ 20-49.1(B)(2) and 20-158(A)(3) to be

consistent with “the intent of the legislature to ensure that

all children born in the Commonwealth have a known legal mother

4
and legal father.” Id. at 336-37, 718 S.E.2d at 489. The

Court of Appeals concluded that it would create a “manifest

absurdity” to interpret Code § 20-158(A)(3) to foreclose any

legal means for an intended, unmarried, biological father to

establish legal parentage of a child born as a result of

assisted conception, merely by virtue of his status as a
2
“donor.” Id. at 336, 718 S.E.2d at 489. Mason appealed, and

we granted the following assignments of error:

1. The Court of Appeals erred in rejecting the circuit
court’s decision that a sperm donor who is unmarried to
the mother of a child conceived by “assisted conception”
is not the child’s father under Va. Code §§ 20-158(A)(3)
and 32.1-257(D), and in overturning the circuit court’s
ruling sustaining the pleas in bar.

. . . .

2. The Court of Appeals erred in failing to rule that
donor’s acknowledgement of paternity was void ab initio
and ineffective and that donor lacked any proper basis for
asserting parentage. 3

We also granted Breit’s assignments of cross-error:

1. The Court of Appeals erred in failing to reverse the
trial court for failing to enter summary judgment in favor
of the father pursuant to § 20-49.1(B)(2) when the birth
mother voluntarily signed an “acknowledgement of
paternity” under oath acknowledging the biological father
to be the legal father of the child.

2
The Court of Appeals also held that the circuit court
erred in appointing Weinberg as L.F.’s GAL and directed the
trial court to appoint a new GAL for L.F. on remand.
3
The listed assignments of error are verbatim from Record
No. 120159. The assignments of error in Record No. 120158 have
slightly different wording but are substantively identical.

5
 2. The Court of Appeals erred in failing to rule that
§ 20-158(A)(3) and § 32.1-257(D) are unconstitutional
and that any statutory interpretation that fully and
finally terminates any potential rights of a sperm
donor violates the constitutionally protected liberty
rights of equal protection and due process.

II. LEGISLATIVE HISTORY AND POLICY

Before we analyze the issues in this case, it is helpful

to review the legislative history and policy behind the two

primary statutes.

A. TITLE 20, CHAPTER 3.1 (CODE § 20-49.1 et seq.)

Code § 20-49.1 et seq. is the statutory scheme designed to

establish the legal parentage of children born to unmarried

parents.

At common law, there was no recognized duty on the part of

an unmarried father to support his biological child. See Brown

v. Brown, 183 Va. 353, 355, 32 S.E.2d 79, 80 (1944). The first

statutory modification of the common-law rule occurred in 1952,

when the General Assembly allowed proof of paternity to

establish such a duty, but only by the father’s admission of

paternity under oath before a court. 1952 Acts ch. 584

(formerly codified as Code § 20-61.1). In 1954, this statute

was liberalized to allow proof of paternity through the use of

a father’s out-of-court admission of paternity in writing under

oath. 1954 Acts ch. 577. In 1988, Code § 20-61.1 was

repealed, and the General Assembly amended and recodified the

6
subject matter in Chapter 3.1, Title 20, Code § 20-49.1 et seq.

1988 Acts ch. 866.

Chapter 3.1 is entitled “Proceedings to Determine

Parentage.” The provision most pertinent to this case, Code

§ 20-49.1, is specifically labeled “[h]ow parent and child

relationship established.” Since its enactment in 1988, Code

§ 20-49.1 has provided for the establishment of paternity by a

voluntary written agreement of the biological father and

mother, made under oath, acknowledging paternity. In 1992, it

was expanded to permit the establishment of paternity through

the use of scientifically reliable genetic testing. 1992 Acts

ch. 516. There is no limitation in Chapter 3.1 barring parents

who conceive through assisted conception from voluntarily

establishing paternity by such a written agreement.

Consequently, Code § 20-49.1 et seq., read without referencing

other statutes, would control the determination of paternity in

all cases concerning children of unwed biological parents who

enter into such voluntary written agreements.

B. TITLE 20, CHAPTER 9 (CODE § 20-156 et seq.)

Code § 20-156 et seq. (the “assisted conception statute”)

is intended to establish legal parentage of children born as a

result of assisted conception. Unlike Code § 20-49.1 et seq.,

it was enacted specifically to protect the interests of married

parents.

7
 The assisted conception statute was enacted in response to

Welborn v. Doe, 10 Va. App. 631, 394 S.E.2d 732 (1990), a case

involving a married couple and a third-party sperm donor. In

Welborn, the Court of Appeals held that the only sure way for

the husband of a gestational mother to secure parental rights,

thereby divesting any rights of a third-party donor, was for

the husband to adopt the child. Id. at 633, 394 S.E.2d at 733.

The court noted the General Assembly’s failure to enact

legislation terminating the rights of such sperm donors,

stating: “[u]ntil such time as the Code is amended to

terminate possible parental rights of a sperm donor, only

through adoption may the rights of the sperm donor be divested

and only through adoption may the rights of Mr. Welborn and the

twins born to his wife be as secure as their rights would be in

a natural father-child relationship.” Id. at 635, 394 S.E.2d

at 734.

In 1991, at the next legislative session following

Welborn, the General Assembly enacted the assisted conception

statute, stating: “[t]he husband of the gestational mother of

a child is the child’s father” and “[a] donor is not the parent

of a child conceived through assisted conception.” 1991 Acts

ch. 600 (enacting Code § 20-158(A)(2)-(3)). The statute

clearly was enacted to ensure that infertile married couples

such as the Welborns, referred to as “intended parents” under

8
the statute, were not threatened by parentage claims from

third-party donors. The policy goal was to ensure that a

married couple could obtain sperm from an outside donor without

fear that the donor would claim parental rights.

Code § 20-158(A)(3) was amended in 1997 to embody its

current language: “[a] donor is not the parent of a child

conceived through assisted conception, unless the donor is the

husband of the gestational mother.” (Emphasis added.) The

amendment addressed situations in which the “donor” is also the

husband of the gestational mother and therefore is permitted to

establish parentage. In such cases, there is no possibility of

interference from outside, third-party donors.

III. ANALYSIS

A. STANDARD OF REVIEW

This appeal presents purely legal questions of statutory

and constitutional interpretation which we review de novo.

Copeland v. Todd, 282 Va. 183, 193, 715 S.E.2d 11, 16 (2011);

Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d 402, 404

(2011).

B. ASSISTED CONCEPTION STATUTE

Mason argues that the Court of Appeals erroneously

harmonized the clear language of the assisted conception

statute with Code § 20-49.1(B)(2). She claims that the

assisted conception statute prevents all unmarried sperm donors

9
from asserting parental rights with respect to children

conceived by assisted conception, whether the mother is married

or unmarried and without regard to her relationship with the

donor. She argues that when a statute is unambiguous, we must

apply the plain meaning of that language without reference to

related statutes. See Carter v. Nelms, 204 Va. 338, 346, 131

S.E.2d 401, 406 (1963).

We disagree with Mason’s interpretation of this statute,

because her argument ignores a significant provision of the

assisted conception statute. Code § 20-164 states:

A child whose status as a child is declared or
negated by this chapter [chapter 9] is the child only
of his parent or parents as determined under this
chapter, Title 64.1, and, when applicable, Chapter
3.1 (§ 20-49.1 et seq.) of this title for all
purposes . . . .

(Emphasis added.) This explicit cross reference to Chapter 3.1

(Code § 20-49.1 et seq.) requires that the assisted conception

statute be read in conjunction with Code § 20-49.1 in the

circumstances presented in this case.

Mason’s argument is grounded in two provisions of the

assisted conception statute, Code §§ 20-157 and 20-158(A)(3).

We will consider these provisions in reverse order.

Code § 20-158(A)(3) 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.” It is

10
undisputed that Breit was a “donor” in an assisted conception,

and that Breit was never married to Mason. Thus, Mason

contends that the statute bars Breit from establishing legal

parentage of L.F., regardless of their voluntary written

agreement.

Mason argues that Code § 20-49.1, despite being

specifically referenced in the assisted conception statute, is

not applicable in the present context and therefore their

voluntary written agreement is a nullity. First, she contends

that Code § 20-49.1 is merely a procedural vehicle by which

existing parent-child relationships can be recognized, and that

the statute cannot be used to create new parentage rights. We

disagree. Code § 20-49.1(B) expressly provides that a parent-

child relationship “may be established by” genetic testing or

an acknowledgement of paternity:

The parent and child relationship between a child and
a man may be established by:

1. Scientifically reliable genetic tests,
including blood tests, which affirm at least a
ninety-eight percent probability of paternity. Such
genetic test results shall have the same legal effect
as a judgment entered pursuant to § 20-49.8.

2. A voluntary written statement of the father
and mother made under oath acknowledging paternity
. . . . The acknowledgement may be rescinded by
either party within sixty days from the date on which
it was signed . . . . A written statement shall have
the same legal effect as a judgment entered pursuant
to § 20-49.8 and shall be binding and conclusive
unless, in a subsequent judicial proceeding, the

11
 person challenging the statement establishes that the
statement resulted from fraud, duress or a material
mistake of fact. 4

Code § 20-49.1 has been amended four times since its enactment,

including three times since the enactment of the assisted

conception statute. Yet it has consistently been titled “[h]ow

parent and child relationship established.” 5 (Emphasis added.)

Black’s Law Dictionary defines “establish” as “[t]o make or

form; to bring about or into existence,” a definition that

clearly contemplates the creation rather than the mere

recognition of parentage rights. Black’s Law Dictionary 626

(9th ed. 2010).

Mason next argues that allowing unmarried sperm donors

such as Breit to establish parentage pursuant to Code § 20-

49.1(B) directly conflicts with Code § 20-158(A)(3). Code

§ 20-49.1(B) contains two independent and disparate provisions:

(B)(1) allows paternity to be established unilaterally by

scientifically reliable genetic testing, and (B)(2) allows

paternity to be established by a voluntary written statement of

both biological parents acknowledging paternity. We must

examine these two independent sections separately.

4
Neither Mason nor Breit rescinded the acknowledgement of
paternity within sixty days of signing it, and neither party
asserted that the agreement resulted from fraud, duress, or a
material mistake of fact.
5
See 1988 Acts chs. 866, 878; 1990 Acts ch. 836; 1992 Acts
ch. 516; 1997 Acts ch. 792; 1998 Acts ch. 884.

12
 Preliminarily, Code §§ 20-49.1(B) and 20-158(A)(3) clearly

relate to the same subject matter: establishing legal

parentage of children. As noted previously, Code § 20-49.1 is

specifically referenced in the assisted conception statute, of

which Code § 20-158(A)(3) is a part. We must therefore

construe these linked statutes that address the same subject

matter “so as to avoid repugnance and conflict between them.”

City of Lynchburg v. English Constr. Co., 277 Va. 574, 584, 675

S.E.2d 197, 202 (2009). The two statutes must be read “as a

consistent and harmonious whole to give effect to the overall

statutory scheme.” Bowman v. Concepcion, 283 Va. 552, 563, 722

S.E.2d 260, 266 (2012) (internal quotation marks omitted). The

assisted conception statute specifically indicates that, when

applicable, Code § 20-49.1 relates to the determination of

parentage of children born as a result of assisted conception.

Code § 20-164. This plain language cannot be ignored. See

English Constr. Co., 277 Va. at 584, 675 S.E.2d at 202 (“No

part of an act should be treated as meaningless unless

absolutely necessary.”). At the same time, Code § 20-49.1 is

only applicable to the extent there is no conflict between its

provisions and those of the assisted conception statute. See

Ragan v. Woodcroft Vill. Apts., 255 Va. 322, 325, 497 S.E.2d

740, 742 (1998).

13
 Mason argues that, under Code § 20-49.1(B)(1), donors

could manufacture parent-child relationships over the

gestational mother’s objection through the use of genetic

testing. Similarly, a gestational mother who became

impregnated by a sperm donor could use Code § 20-49.1(B)(1) to

force parental responsibilities on the donor, including the

obligation of child support, solely by establishing a

biological link. Mason asserts that the General Assembly

intended to foreclose such scenarios when it enacted the

assisted conception statute. We agree.

Code § 20-49.1(B)(1) directly conflicts with Code § 20-

158(A)(3), since it allows paternity to be established solely

on the basis of biological ties, which circumvents Code § 20-

158(A)(3)’s instruction that mere donors cannot establish

parentage. Consequently, a sperm donor aided only by the

results of genetic testing may not establish parentage.

Code § 20-49.1(B)(2) does not present such a conflict.

Executing an acknowledgement of paternity involves an

assumption of rights and responsibilities well beyond

biological ties. It is a voluntary agreement to establish an

actual parent-child relationship that more closely approximates

the status of a gestational mother’s husband rather than a

third-party donor. The assisted conception statute simply did

not contemplate situations where, as here, unmarried donors

14
have long-term relationships as well as biological ties that

have been voluntarily acknowledged in writing pursuant to Code

§ 20-49.1(B)(2), and have voluntarily assumed responsibilities

to their children.

As previously discussed, the assisted conception statute

was written specifically with married couples in mind. 6 The

statute’s primary purpose is to protect cohesive family units

from claims of third-party intruders who served as mere donors.

But Breit is not an intruder. He is the person whom Mason

originally intended to be L.F.’s parent, whom she treated as

L.F.’s parent for an extended period, and whom she voluntarily

acknowledged as L.F.’s parent in a writing that she intended to

be legally binding. Until Mason terminated Breit’s visitation,

Breit cared for, supported, and had begun to establish a

parent-child relationship with L.F. Mason and Breit

represented the closest thing L.F. had to a “family unit.”

We agree with the Court of Appeals that the General

Assembly did not intend to divest individuals of the ability to

establish parentage solely due to marital status, where, as

6
The definitions listed in the assisted conception statute
reiterate the statute’s emphasis on married couples. For
instance, Code § 20-156 defines “[s]urrogate” as “any adult
woman who agrees to bear a child carried for intended parents,”
and “[i]ntended parents” is defined as “a man and a woman,
married to each other, who enter into an agreement with a
surrogate under the terms of which they will be the parents of
any child born to the surrogate through assisted conception
. . . .” (Emphasis added.)

15
here, the biological mother and sperm donor were known to each

other, lived together as a couple, jointly assumed rights and

responsibilities, and voluntarily executed a statutorily

prescribed acknowledgement of paternity.

Having determined that Code § 20-49.1(B)(2) would apply in

this context notwithstanding Code § 20-158(A)(3), we turn to

Mason’s next argument. Mason asserts that Code § 20-157

forecloses a conclusion that Code § 20-49.1(B)(2) applies.

Code § 20-157 expressly states that the provisions of Chapter 9

control, without exception, in any related litigation:

The provisions of this chapter [chapter 9] shall
control, without exception, in any action brought in
the courts of this Commonwealth to enforce or
adjudicate any rights or responsibilities arising
under this chapter.

This provision requires this Court to give precedence to Code

§§ 20-158(A)(3) and 20-164 when confronted with contrary

arguments. However, we must also harmonize Code § 20-49.1,

when applicable, due to its explicit inclusion in Code § 20-

164. Read in isolation, Code § 20-157 could support Mason’s

argument. But we do not read statutes in isolation. As stated

above, we must construe statutes “to avoid repugnance and

conflict between them.” City of Lynchburg, 277 Va. at 584, 675

S.E.2d at 202. Likewise, we are bound to construe statutes in

a manner that “avoid[s] any conflict with the Constitution.”

Commonwealth v. Doe, 278 Va. 223, 229, 682 S.E.2d 906, 908

16
(2009). In Virginia, it is firmly established that “[a]ll

actions of the General Assembly are presumed to be

constitutional.” Hess v. Snyder Hunt Corp., 240 Va. 49, 52,

392 S.E.2d 817, 820 (1990). Breit contends that accepting

Mason’s argument would render the assisted conception statute

unconstitutional. That we cannot do, if there is any

reasonable interpretation that conforms to the Constitution.

See Ocean View Improvement Corp. v. Norfolk & W. Ry. Co., 205

Va. 949, 955, 140 S.E.2d 700, 704 (1965). Consequently, we

must address Mason’s argument regarding Code § 20-157 in the

light of two constitutional imperatives.

C. EQUAL PROTECTION AND DUE PROCESS

Breit argues that if we accept Mason’s argument the

assisted conception statute violates the Equal Protection

Clause of the Fourteenth Amendment. He suggests that the

statute treats unmarried male donors differently than unmarried

female donors and treats unmarried donors differently than

married donors.

The assisted conception statute does not distinguish

between donors based on gender. The statute defines “[d]onor”

as “an individual, other than a surrogate, who contributes the

sperm or egg used in assisted conception.” Code § 20-156

(emphasis added). Thus, a woman who is not the gestational

mother also can be a donor. Neither a male nor a female donor

17
is deemed to be a parent purely as a result of the donation of

sperm or egg. See Code § 20-158(A)(3). It is true that an

unmarried female egg donor who is also the gestational mother

may be considered a parent, see Code § 20-158(A)(1); however,

the fact that a male is unable to be the gestational carrier of

the fertilized ovum is the result of biology, not

discrimination.

Code § 20-158(A)(3) does make distinctions based on

marital status: a male donor is afforded rights as a parent

only if he is married to the gestational mother. But marital

status is not a suspect classification under the Equal

Protection Clause. See Eisenstadt v. Baird, 405 U.S. 438, 446-

47 (1971). Therefore, disparate treatment of unmarried donors

is analyzed to determine whether there is a rational basis for

such treatment. “A classification reviewed under a rational

basis standard ‘is accorded a strong presumption of

validity.’ ” Gray v. Commonwealth, 274 Va. 290, 308, 645

S.E.2d 448, 459 (2007) (quoting Heller v. Doe, 509 U.S. 312,

318-21 (1993)). Such a classification will stand if there is a

rational relationship between the disparate treatment and some

legitimate governmental purpose. Id.

We have consistently recognized that the Commonwealth has

a significant interest in encouraging the institution of

marriage. E.g., Cramer v. Commonwealth, 214 Va. 561, 564, 202

18
S.E.2d 911, 914 (1974). Code § 20-158(A)(3)’s objective of

protecting married couples from potential interference by

donors is rationally related to that legitimate governmental

purpose. Accordingly, Breit’s equal protection argument must

fail.

Next, Breit contends that the assisted conception statute,

if applied as advanced by Mason without harmonization with Code

§ 20-49.1 et seq., violates his constitutionally protected

right to make decisions concerning the care, custody, and

control of his child. We agree. That constitutional

imperative therefore must guide our conclusion regarding

statutory interpretation, particularly regarding Code § 20-157.

The relationship between a parent and child is a

constitutionally protected liberty interest under the Due

Process Clause of the Fourteenth Amendment. 7 Troxel v.

Granville, 530 U.S. 57, 65 (2000); Wyatt v. McDermott, 283 Va.

685, 692, 725 S.E.2d 555, 558 (2012) (“We recognize the

essential value of protecting a parent’s right to form a

relationship with his or her child.”); Copeland, 282 Va. at

198, 715 S.E.2d at 19. Indeed, the Supreme Court of the United

States has characterized a parent’s right to raise his or her

child as “perhaps the oldest of the fundamental liberty

7
The due process guarantees of Article I, Section 11 of
the Constitution of Virginia are virtually identical to those
of the United States Constitution.

19
interests recognized by this Court.” Troxel, 530 U.S. at 65.

Any statute that seeks to interfere with a parent’s fundamental

rights survives constitutional scrutiny only if it is narrowly

tailored to serve a compelling state interest. McCabe v.

Commonwealth, 274 Va. 558, 563, 650 S.E.2d 508, 510 (2007); see

also Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

Significantly, in Lehr v. Robertson, 463 U.S. 248 (1983),

the Supreme Court of the United States examined the extent to

which an unmarried father’s relationship with his child is

protected under the Due Process Clause. The Court recognized

that parental rights do not arise solely from the biological

connection between a parent and child. Id. at 261. The Court

described the constitutionally protected right of unwed parents

as follows:

When an unwed father demonstrates a full commitment
to the responsibilities of parenthood by coming
forward to participate in the rearing of his child,
his interest in personal contact with his child
acquires substantial protection under the Due Process
Clause.

Id. (internal quotation marks and citation omitted).

Prior to his visitation being terminated, Breit

demonstrated a full commitment to the responsibilities of

parenthood. He was actively participating in L.F.’s life, had

agreed to be listed as the father on her birth certificate, had

acknowledged paternity under oath, and had jointly agreed with

20
Mason regarding parental rights and responsibilities. In light

of this demonstrated commitment, we conclude that the Due

Process Clause protects Breit’s fundamental right to make

decisions concerning L.F.’s care, custody and control, despite

his status as an unmarried donor. 8

If applied without harmonization with Code § 20-

49.1(B)(2), Code §§ 20-157 and 20-158(A)(3) would

unconstitutionally infringe on Breit’s fundamental parental

rights. As argued by Mason, an unmarried donor could never be

8
Mason argues that Breit’s relationship with L.F. is not
sufficient to trigger constitutional protection. She asserts
that under the Supreme Court’s holding in Michael H. v. Gerald
D., 491 U.S. 110, 124 (1989), the existence of constitutionally
protected parental rights turns not on the depth of the parent-
child relationship, but on whether the type of relationship at
issue has traditionally been afforded special protection.
Because assisted conception has only existed in recent years,
Mason argues that the relationship between a sperm donor and
child could not possibly be a historically protected
relationship.
Mason’s reliance on Michael H. is misplaced. In that
case, a biological father who spent a short amount of time as
the mother’s live-in boyfriend sought to establish paternity
after the mother had reconciled with her husband. The Supreme
Court refused to recognize a liberty interest on behalf of the
boyfriend, holding that relationships between children and
adulterous fathers should not be constitutionally protected
given society’s historical interest in safeguarding the family
institution. Michael H., 491 U.S. at 123-24. Interference
with the family institution is not at issue here: Mason and
Breit represent the closest thing L.F. has to a “family unit,”
as Mason has no husband to claim parentage over Breit. The
Court in Michael H. specifically acknowledged that, although
the typical family institution is the marital family, respect
has also historically been accorded to relationships developed
within households comprised of unmarried parents and their
children. Id. at 124 n.3.

21
the parent of a child conceived through assisted conception.

That interpretation would absolutely foreclose any legal means

for Breit to establish parentage of L.F., solely by virtue of

his status as an unmarried donor. It would prevent Breit from

continuing the constitutionally protected relationship he had

begun to establish with his infant child. Such a result cannot

withstand constitutional scrutiny.

A governmental policy that encourages children to be born

into families with married parents is legitimate. In fact, it

is laudable and to be encouraged. Yet neither our

jurisprudence nor that of the United States Supreme Court

permits that policy to overcome the constitutionally protected

due process interest of a responsible, involved, unmarried

mother or father. See Martin v. Ziherl, 269 Va. 35, 42, 607

S.E.2d 367, 370 (2005). Simply put, there is no compelling

reason why a responsible, involved, unmarried, biological

parent should never be allowed to establish legal parentage of

her or his child born as a result of assisted conception.

When we apply the necessary constitutional due process

analysis, the Court of Appeals’ harmonization of Code §§ 20-

158(A)(3) and 20-49.1(B)(2) must prevail. Code § 20-157 cannot

be interpreted to foreclose that conclusion without being

rendered unconstitutional. The assisted conception statute,

read as a whole, cannot render Code § 20-49.1(B)(2) ineffective

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because the General Assembly, acting in a manner consistent

with its constitutional charge, could not have intended to

permanently bar parentage actions by sperm donors under these

factual circumstances. 9 See Hess, 240 Va. at 52, 392 S.E.2d at

820. Due process requires that unmarried parents such as

Breit, who have demonstrated a full commitment to the

responsibilities of parenthood, be allowed to enter into

voluntary agreements regarding the custody and care of their

children.

D. ENFORCEABILITY OF ACKNOWLEDGEMENTS OF PATERNITY

In a final, related argument, Mason contends that

acknowledgements of paternity executed pursuant to Code § 20-

49.1(B)(2) are unenforceable. She argues that the rights of

children cannot be bartered away by agreement and that all such

agreements are void ab initio and of no effect. As strange as

it may seem, the thrust of Mason’s argument is that the

acknowledgement of paternity impinges on a child’s right not to

have a parent.

9
On the other hand and as stated previously, Code § 20-
49.1(B)(1) directly conflicts with Code § 20-158(A)(3) and may
not be applied in the context of assisted conception. This
does not violate constitutional due process rights, however,
because Code § 20-49.1(B)(1) contemplates the establishment of
paternity solely on the basis of biological ties.
Constitutionally protected rights do not arise merely from the
biological connection between a parent and child. Lehr, 463
U.S. at 261.

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 Mason relies on this Court’s holding in Kelley v. Kelley,

248 Va. 295, 449 S.E.2d 55 (1994). In Kelley, we refused to

honor an agreement relieving a divorced father of his child

support obligations, holding that “parents cannot contract away

their children’s rights to support” and that “any contract

purporting to do so is facially illegal and void.” Id. at 298-

99, 449 S.E.2d at 56-57. Mason miscomprehends the breadth of

our holding. Kelley only addresses agreements contracting away

a child’s right to receive support and maintenance. Breit’s

acknowledgement of paternity provides for the exact opposite –

it provides L.F. with a legal avenue to receive support from

both parents. Kelley does not prohibit such an agreement.

Furthermore, we reject the notion that children have a

purported right or interest in not having a father. To the

contrary, Virginia case law makes clear that it is in a child’s

best interests to have the support and involvement of both a

mother and a father, even if they are unmarried. See Copeland,

282 Va. at 194-95, 715 S.E.2d at 17; Wilkerson v. Wilkerson,

214 Va. 395, 397-98, 200 S.E.2d 581, 583 (1973) (recognizing

that one parent cannot arbitrarily deprive a child of a

relationship with the other parent); see also June Carbone,

Which Ties Bind? Redefining the Parent-Child Relationship in

an Age of Genetic Certainty, 11 Wm. & Mary Bill Rts. J. 1011,

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1023-24 (2003) (discussing children’s interests in the

continuing involvement of both parents in the child’s life).

Although our analysis in this case rests on Breit’s

constitutionally protected rights as a parent, we recognize

that children also have a liberty interest in establishing

relationships with their parents. Commonwealth ex rel. Gray v.

Johnson, 7 Va. App. 614, 622, 376 S.E.2d 787, 791 (1989).

Consequently, it is incumbent on courts to see that the best

interests of a child prevail, particularly when one parent

intends to deprive the child of a relationship with the other

parent. “The preservation of the family, and in particular the

parent-child relationship, is an important goal for not only

the parents but also government itself . . . . Statutes

terminating the legal relationship between [a] parent and child

should be interpreted consistently with the governmental

objective of preserving, when possible, the parent-child

relationship.” Weaver v. Roanoke Dep’t of Human Res., 220 Va.

921, 926, 265 S.E.2d 692, 695 (1980). Here, L.F. faces a

potential loss of liberty in the form of deprivation of a

relationship with her biological father, solely because she was

conceived through assisted conception by unmarried parents.

Virginia’s marital preference in assisted conception protects

an intact family from intervention from third-party strangers,

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but it was not intended to deprive a child of a responsible,

involved parent.

E. CODE § 32.1-257(D)

Finally, Mason argues that Code § 32.1-257(D), a statute

intended to control the filing of birth certificates for each

live birth in the Commonwealth, bars Breit’s ability to

establish parentage. When a child is born to unmarried

parents, Code § 32.1-257(D) states:

[T]he name of the father shall not be entered on the
certificate of birth without a sworn acknowledgement
of paternity, executed subsequent to the birth of the
child, of both the mother and of the person to be
named as the father.

. . . .

For the purpose of birth registration in the case of
a child resulting from assisted conception, pursuant
to Chapter 9 (§ 20-156 et seq.) of Title 20, the
birth certificate of such child shall contain full
information concerning the mother’s husband as the
father of the child and the gestational mother as the
mother of the child. Donors of sperm or ova shall
not have any parental rights or duties for any such
child.

Our interpretation of this statute is controlled by our

analysis of the assisted conception statute. As with the

assisted conception statute, we are bound to interpret Code

§ 32.1-257(D) in a manner that avoids constitutional conflict.

Doe, 278 Va. at 229, 682 S.E.2d at 908.

Code § 32.1-257(D) is an administrative, ministerial

enactment. Its purpose is to ensure that the Commonwealth’s

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records accurately reflect the intended parent-child

relationship. Where, as here, unmarried biological parents

together undertake the process of assisted conception,

voluntarily execute an acknowledgement of paternity naming the

“donor” as the child’s legal father, and together enter into a

binding agreement regarding custody and care, prohibiting the

“donor” from ever establishing parental rights would be

contrary to the statute’s stated purpose and contrary to the

Due Process Clause of the United States Constitution.

Consequently, Mason’s argument must fail.

IV. CONCLUSION

For the reasons set forth above, we will affirm the

judgment of the Court of Appeals.

Record No. 120158 – Affirmed.
Record No. 120159 – Affirmed.

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