Case illustrates danger of entering into informal arrangements involving birth of children; attorney advises use of unknown donors

Tamila Payne fears her ex-partner’s uncle, who was the sperm donor for her son, could take Noah away from her. After she split with her partner, the uncle wanted custody.

ROUND ROCK When Tamila Payne and her partner Jennie Ferguson decided they wanted a child about four years ago, Jennie's uncle Mark Lee seemed like the ideal sperm donor.

For one, Lee's participation would ensure that the child to be carried by Payne would have genetic ties to both women.

"That was the big thing," Payne said. "It would be a part of her as much as it would be a part of me. That was a big reason we wanted to do that. "

An informal arrangement with Lee also would allow the couple to avoid fees associated with the use of a sperm bank or an attorney to draft up an assisted reproduction agreement. In fact, they didn't even use a doctor, as Payne impregnated herself with a syringe in their home.

After Noah Lee was born in 2004, things went well for a year or so, Payne said.

Lee was like an uncle to Noah, according to Payne, even sharing a house in Austin with the couple.

But after Payne and Ferguson split, the situation deteriorated.

Ferguson and Lee moved to Fort Worth, and Lee, whose name is on Noah's birth certificate, decided he wanted to be the boy's father.

Payne, who lives in Round Rock, initially went along with Lee's wishes, allowing Noah to spend every other week in Fort Worth.

"I was trying to be fair about things, and it just got to where Noah was kicking and screaming and not wanting to go," Payne said.

"After the [2006] holidays, I was like, no more, I'm not doing this. I said, "'You can take me to court.'"

That's exactly what Lee did, and now he and Payne are locked in a battle for custody of the 3-year-old Noah. If Payne loses, she faces the prospect of spending only one weekend a month with Noah.

"They're trying to take him from me and give him to them," Payne said. "He's the one suffering. He's the one hurting. It's not about me, it's about him. He can't even stand going for a week. How's he going to stand never seeing me?"

Ferguson did not return a voice message seeking comment.

After consulting with his attorney, Lee also declined to discuss the situation.

"This is a matter that should be handled between us privately," Lee said. "I totally disagree with her going public with this."

Conflicting case law

Experts say Noah's case illustrates why it is critical that donors and same-sex couples consult with attorneys before entering such arrangements.

"The donor needs to see an attorney, and the couple who wants to conceive needs to see an attorney," said Cynde Horne, who frequently drafts assisted reproduction agreements as part of her practice in Oak Lawn. "They need to spell out exactly what each party wants the rights of the other party to be."

Even with such agreements, there is no guarantee courts will honor them.

"The safest thing is to have an unknown donor," Horne said.

Part of the problem is that case law in Texas is conflicting when it comes to the question of whether sperm donors have standing in court to file lawsuits seeking to establish paternity.

In the two most recent cases, one appellate court ruled that a sperm donor had standing while another ruled that a sperm donor did not. The Texas Supreme Court has not taken up the matter.

Horne said in the absence of an assisted reproduction agreement, it's unlikely Ferguson could seek visitation with Noah.

"In terms of who's going to be a parent to this child, the partner of the mother doesn't have any rights," Horne said.

But the same does not hold true for Lee.

"If the mother doesn't want the donor to be involved in the child's life, she certainly should not have put the man's name on the birth certificate because she's naming him the father by doing that," Horne said. "I would say that by putting this man's name on the birth certificate, the mother has opened the door to allow him to come in and ask to be named the father. Under the law, if his name's on the birth certificate, he's nine-tenths of the way there."

Fundraiser planned

An amicus attorney an attorney hired to assist the court in protecting the best child's interests has recommended that Lee be given primary custody of Noah, with Payne having visitation for one weekend a month.

Payne said she thinks the amicus attorney is biased against her lesbian lifestyle. "She only spent 45 minutes at my house," Payne said. "She was at Mark's house for 2 1/2 hours."

The judge adopted the attorney's recommendation, but Lee has agreed to allow Noah to spend every other week in Round Rock pending final disposition of the case, Payne said.

To make matters worse, Payne said Ferguson is refusing to allow her to see Ferguson's two boys, ages 8 and 10. Payne said she was like a mother to the boys, who are Ferguson's by a previous marriage. Payne and Ferguson were together for about seven years.

"I don't cry anymore about it," Payne said. "I used to cry all the time. I can honestly say I've never thought she would not let me see them or not let me in their lives when I had been since when they were babies."

In addition, Payne said she is facing mounting attorney's fees in her fight for Noah, which thus far have totaled nearly $15,000.

Fortunately, a newly formed group in the Austin area, GLBT Families, has stepped in. The group is planning a fundraiser for Payne on Saturday, Sept. 8.
"It's unfortunate," said Misty White, co-founder and president of GLBT families. "I don't know on a personal level what Tamila's going through, but I can just imagine."

For more information, visit www.yourglbtfamily.org.

E-mail wright@dallasvoice.com



This article appeared in the Dallas Voice print edition September 7, 2007