## Facts

- Beverley Mason and William D. Breit were long-term, unmarried partners who lived together and wanted to have a child.
- Because they could not conceive naturally, they pursued in vitro fertilization with a physician, using Mason’s eggs and Breit’s sperm; embryos were created outside Mason’s body and then transferred to Mason.
- Mason gave birth to a daughter, L.F., on July 13, 2009; Breit was present at the birth, was listed as the father on the birth certificate, and the child was given a hyphenated last name combining both adults’ surnames.
- Before the birth, Mason and Breit signed a written custody and visitation agreement stating that visitation with Breit would be in the child’s best interests and that Breit would have reasonable visitation.
- The day after the birth, Mason and Breit signed a written “Acknowledgement of Paternity” stating that Breit was L.F.’s legal and biological father.
- Mason and Breit lived together for several months after L.F.’s birth, then separated; Breit continued to provide support, kept L.F. on his health insurance, and visited regularly.
- When L.F. was about a year old, Mason ended all contact between Breit and L.F.
- Breit sought a judicial declaration that he was L.F.’s legal father and requested custody and visitation under Virginia’s parentage statutes.
- Mason and L.F. argued that Virginia’s assisted-conception statute and vital-records statute allowed only a mother’s husband to be treated as the legal father of a child conceived through assisted conception, so Breit could not establish parentage despite the written acknowledgment.
- The circuit court sustained pleas in bar and dismissed Breit’s petition; the Court of Appeals reversed; Mason and L.F. appealed to the Supreme Court of Virginia.

## Issues

1. Whether Virginia Code §§ 20-158(A)(3) and 32.1-257(D) bar an unmarried, biological father from establishing legal parentage of a child conceived through assisted conception when both adults executed a voluntary written acknowledgment under Virginia Code § 20-49.1(B)(2).
2. Whether a properly executed acknowledgment of paternity under Virginia Code § 20-49.1(B)(2) is enforceable and creates a binding parent-child legal status absent a timely statutory challenge.
3. Whether interpreting the assisted-conception statute to prevent an unmarried biological father from establishing parentage would violate due process or equal protection.

## Decision

- The Supreme Court of Virginia affirmed the Court of Appeals.
- The Court held that Virginia Code § 20-158(A)(3) (assisted conception) and Virginia Code § 32.1-257(D) (vital records) do not bar an unmarried biological father from establishing legal parentage under the circumstances presented.
- The Court concluded that the voluntary written acknowledgment executed under Virginia Code § 20-49.1(B)(2) was enforceable and established a legal parent-child relationship between Breit and L.F.
- The Court reasoned that the parentage provisions should be read together so that the assisted-conception statute does not negate the separate statutory mechanism allowing paternity to be established by written acknowledgment.
- The Court stated that a reading of the assisted-conception statute that would divest an unmarried biological father of any ability to establish legal parentage solely because the child was conceived through assisted conception would create due process problems.
- As construed to allow establishment of parentage through the acknowledgment and related parentage statutes, the statutory scheme did not violate equal protection.
- Because Breit was a legal parent, his request for custody and visitation could proceed and could not be dismissed on the theory that he was legally a stranger to the child.

## Legal Principles

- Statutes addressing parentage and birth registration should be construed together to give effect to each, rather than treating one as silently cancelling another.
- Virginia’s assisted-conception statute assigns parentage in certain assisted-conception situations but does not, without clear language, eliminate other statutory routes for establishing parentage available to biological parents.
- A voluntary written acknowledgment of paternity executed under Virginia Code § 20-49.1(B)(2) is enforceable and can create a binding parent-child legal relationship, subject to the statute’s limits on rescission or challenge.
- Courts generally avoid statutory interpretations that would create due process violations by cutting off an involved biological parent’s ability to obtain legal recognition of an established parent-child relationship.
- Once legal parentage is established, custody and visitation disputes are resolved under the child’s best-interests standard, with the parent proceeding as a parent rather than a third party.

## Conclusion

The Supreme Court of Virginia held that the assisted-conception and vital-records statutes did not prevent an unmarried biological father from becoming a child’s legal parent when the mother and father executed a valid written acknowledgment of paternity under the parentage statutes; the acknowledgment was enforceable, and Breit could pursue custody and visitation as L.F.’s legal father on remand.


L.F. v. Breit, 736 S.E.2d 711 (2013)