Assisted Reproduction via Sex?

I pause in my exploration of the differences between surrogacy and adoption to consider a Quebec law with a truly novel feature.    It’s not really far off-topic, actually.

In a recent post on her very fine blog, Professor Nancy Polikoff discusses this law.   She in turn refers to an article about the law (happily enough in English) by Professor Robert Leckey (which you can find at SSRN, which is free but does require registration.)

The main point of the Quebec law, it seems, is to ensure legal parentage of people who are using assisted reproductive technology (ART).   It’s operation may be particularly important in non-marital lesbian families.  (Recall that lesbians can marry in Canada.)

If a child is conceived as a part of a “parental project” then the parties to the project are the parents of the child from the time of the child’s birth.  The donor of genetic material used is not a parent of the child.   So a lesbian couple could embark on a parental project, use donor sperm, and at the birth of the child, both women would be parents.  No second parent adoption would be necessary and you would not see cases where the woman who gave birth could deny the parental status of her partner.    If you’ve had a look at some of the cases like that I’ve detailed, I’m sure you’ll agree that this is a significant improvement.

This seems to me to be similar to what happens now in Massachusetts and Connecticut with married lesbian couples and in a number of states with lesbian couples who are domestic partners or parties to a civil union.   Generally speaking, the spouse of a woman who gives birth is presumed to be a parent.   However, under the Quebec law, in addition to these couples, couples not in formalized relationships who declare themselves to an administrative agency would also be able to take advantage of the law.

While the law might well benefit lesbian couples as well as non-marital male/female couples, it does not seem to provide much for single men or gay male couples seeking to raise children.  As far as I can tell (but in fact I have no expertise whatsoever as to Quebec law, so maybe I am wrong) a woman who gives birth is not in the category of donors and so will be a parent.    There is nothing particularly unusual here, of course.   Because of the unique reproductive capacities of men and women, women seeking to raise children without the involvement of a man need only sperm while men seeking to raise children without a woman need both an egg and a woman to become pregnant and give birth.   Hence, lesbians need donors while gay men need surrogates.

Anyway, now to what I think is the remarkably novel aspect of the law.   Recall that in the US, in a number of places where sperm donors are not fathers, the distinction between donor and father rests on the system by which the sperm is delivered:  If via sexual intercourse, man is a father.  If via ART, he’s a donor and not a father.  This leads to a small number of odd cases where courts have to determine, as a matter of fact, how a particular sperm arrived at its destination.  (If you don’t believe me, go follow that earlier link.)

I agree that this is a bizarre result and I would and have argued for a rule that avoids it.  The Quebec statute also avoids it, but in a very unusual way.

The statue posits three varieties of assisted procreation.   (For this, you have to go to the full article, by the way.)   One is via a doctor–that’s ordinary ART.   A second is what seems to be called “artisanal” assisted procreation.   (I’m thinking that must be the at-home-with-turkey-baster technique.)  And the third, and to my mind most remarkable seems to be called “amicable” assisted procreation.       This last depends a “Good Samaritan” who engages in sexual intercourse as a means of donating the sperm.

I’m sure I should be more reflective about this, but this rather strikes me as madness.   What this does, of course, is shift the question of whether the man is a donor from one of historical fact (how did that sperm get there?) to one of state of mind (what did he intend?)   I can only imagine that there will be countless instances of both mixed intent and non-mutual intent (as in not shared by all the people involved.)   All this could lead to terrible muddles over whether the man is a parent or not.  Muddles in such matters are never good.

Additionally, the law seems to allow an amicable donor one year after birth in which to change his mind and assert his status as a parent.  Again, this seems to me to be a source of potential trouble.   More troubling still, it’s not clear why the amicable donor warrants this treatment but the artisinal donor would not.

I think this is the first time I’ve encountered a legal scheme where a man can have sex with a woman with pregnancy resulting and the man is not a father.   It just opens a whole world of possibilities.