Gay Dads, Surrogacy and Portable Parenthood

Here’s a new case from Virginia that turned up on Professor Arthur Leonard’s very fine blog.   The facts are rather complicated and the case presents a variety of interesting question. 

Roberto-Luis Copeland and Philip Spivey are a gay couple.   They wanted to become parents.  In 2003 in Minnesota (where I assume they lived) they entered into an agreement with Tanya Prashad.   It’s described in the opinion as a surrogacy agreement. 

Prashad was inseminated with sperm from both men.   She became pregnant and ACC was born in Minnesota on August 10, 2004.   Now I don’t know offhand what the law about surrogacy in Minnesota is.   But I believe, from the events that followed, that Prashad was and remains the child’s mother.  

Figuring out the father at the time of birth is a different matter. 

Lesbian Mothers and Sperm Donors, Known or Otherwise

Lesbian couples who wish to have children born to one of the women use donor sperm.  Instead of the general discussion about sperm donors (or sperm providers–it is true that since most men are paid “donor” is perhaps misleading) that has predominated on the blog recently, I wanted to focus a bit on this one specific circumstance. 

While some lesbian couples may wish to co-parent with a donor/provider (and perhaps his partner), I’m going to exclude them from consideration for the moment.  Instead I’ll focus on what I believe to be a substantially larger group:  lesbian couples who wish to raise a child with only two legal/social parents–the members of the couple.  

For these lesbian couples, the role of the donor/provider can be a source of some concern.   Most obviously, they want to avoid his recognition as a legal parent of the child.  

Sperm Donors and Fathers

This story appeared in what was once our local paper and is now internet only.   (And it looks like they picked it up from Redbook.)  It’s a fine account of one’s man discovery that he and his wife needed to use a sperm donor and his thoughts about that process.  

I don’t suppose I have all that much to add to it, though it ties back to lengthy discussions on this blog about sperm donors (anonymous and otherwise.)     Like many people who have written here, Gary Blitt wasn’t sure how he’d feel about a child conceived with donor sperm.   But as time passes, there’s no question that he is his daughter’s father.  He’ll be the one to teach her to read box scores and change the diapers.  

Perhaps it is true, as he says, that his sperm wouldn’t even have been as good as the donor’s was.   But what is more important to me, at least, as that every day in real life he is the father of this child.  

What Does It Mean That A Child is “Yours?”: Thinking About ART Mistakes

Here’s a thought-provoking piece from The Guardian, UK.   It ties back to some of my earlier thoughts about ART mistakes. (The most recent string was occasioned by the “wrong embryo” case featured on the Today show not so long ago.)  

As the article notes, while uncertainty about paternity has been around forever, uncertainty about maternity is a new problem.   Time was a woman gave birth and we knew she was the mother.   Now?  She may not be legally recognized as the mother of the child (because in a jurisdiction that enforces surrogacy agreements a woman who gives birth is not necessarily a mother).   And she may be legally recognized, but she may not be genetically related to the child.   In this brave new world, women as well as men may now need to ask ”Is this child mine?”   

This question–is the child mine-is a fascinating one.   To say that this thing or that thing is mine is to claim possession.   Children, of course, are not possessions, nor can they be possessed.   As it is used in this article (and in the Michael Jackson’s Billie Jean) the question is really one about genetic lineage–was my genetic material used to create this child

So Maybe Being A Parent IS All About Sex?

Under the laws of many states (including Washington) and in the Uniform Parentage Act the parental status of some men turns on the precise means by which the crucial sperm entered the mother’s body:  If sperm is introduced via intercourse than the man is a father while if it is introduced any other way, he is not.   I have commented in the past  that this seems a very odd place to draw a line. 

People of differing views might well share this opinion.   If you think genetics is the  crucial determinant of parental status, then the man is a father no matter how the sperm is delivered.  If you think intent is critical, then the man may or may not be a father–engaging in intercourse is no guarantee of intent to parent.   If you tend towards function (as I typically do) then the man may or may not be a father, but it has little to do with the actual delivery of the sperm.   And so on through the tests I’ve discussed.   

Even when I might disagree in substance (as I do with the genetics-is-fatherhood stance) I find it sensible that sex/no sex is not where a line is drawn.  

Father if Married, Married if Male?

I thought I’d discuss a case recently highlighted in Professor Art Leonard’s blog.   To my mind, this case illustrates the peculiarity of having status as a parent turn on the existence of a formal legal relationship between two adults.   I cannot gain access to the full opinion (you need a subscription service) so I’ll go with the facts as Professor Leonard recites them.

KB was born female but began living as a male as a teenager.  He began living with JR, who is female, in 1998, which is the same year that he legally changed his name.   JR was aware that KB had been born female.

After KB changed his name, he and JR obtained a marriage license and were married.   I assume this was in New York and New York does not currently permit (nor did it then permit) two women to marry.  Because KB was still legally a woman (even though he had changed his name), KB and JR’s marriage was likely not permissible.   However, it appears no one paid any attention to this little detail at the time.   (The issues surrounding marital status of transgender people are numerous and really beyond the scope of this blog.)

Four years later, KB and JR decided to have a child together.    

Restricting Access to ART: One View on Ethics

There’s been a lot of discussion on my blog about donor insemination, and particularly the use of anonymous donors.   I’m ready to take this is a broader direction.  I’ll start with this short post. 

 This morning I came across this document, which provides ethical guidance to ART (that’s assisted reproductive technology)   professionals.    (DI is is one facet of ART.)   It was developed by the ASRM(American Society for Reproductive Medicine).  While it doesn’t address the issue of anonymous donors, it is focused on the use of ART by people who will frequently be using anonymous donors.    

It’s not particularly new (2006) but it is interesting to me the way the discussion is organized.  As the title makes clear, this paper is addressed to the use of ART by lesbian, gay or unmarried people.   The question posed is whether it is permissible to discriminate in the provision of ART–that is, to provide it to (heterosexual) married couples, but not to unmarried couples or single people.  

News from the UK:New Rights for Donor Siblings

There’s much coverage in UK papers of some new provisions of the law governing ART that just took effect.  (I’ve linked to a couple of different accounts and with a little work, you could find many more.)   These provisions make it possible for people conceived using the same donor’s sperm to locate each other.   They are generally referred to here as either half-siblings or donor siblings.  

It’s worth thinking about donor siblings for a moment.   Siblings generally are minor players in the law–they don’t have  a lot of rights vis-a-vis each other.   This makes recognition of donor siblings more strictly a social/cultural concern and less a legal one.  It also makes it a less complicated issue, since identifying a sibling doesn’t raise autonomy issues that identifying a donor might.  

A Quick Question about Children and Their Sperm Donors

I’m not at all sure this will work.   I’ve never actually used a post simply to ask a question.  But given all the discussion on my blog recently, I thought I might try.  If it’s a disaster I can always take it down, right? 

First, for the sake of discussion here, let’s say I agree that there’s some right for a child to know her/his genetic history, perhaps even actually meet or have access to or have some social relationship with the man who donated sperm.   I want to make two points explicit–1)  I’m only assuming this for the moment and 2) I understand this to be a right or entitlement of the child. 

Now here is my question:  Is there any reason why this requires that the man in question be given the legal rights of parent?  

The reason I’m concerned is this.  As I have discussed on several occasions elsewhere on this blog, legal parents have substantial rights vis-a-vis their children.  

A Child-Centered Perspective and Natural Parenthood

I want to move off the last topic, even though it has spurred much discussion which I suspect is not exhausted, and try to broaden my thinking.  

I think many of the comments on the last discussion were from what I will call a “child-centric” perspective.  (For some reason this reminds me–no one actually addressed my question about what rights, if any, a donor (as opposed to a child) ought to have.   What do I make of that silence?)  

The idea of a child-centric perspective is to judge various rules/practices by how well they serve children.  That’s not an easy thing to do by any means, partly because children vary enormously and partly because we probably don’t agree on what is good for children.  Choosing the path that makes children happy isn’t always best for them.  But I’ll skim over these difficulties for now. 

Anyway, the comments on the last thread considered donor insemination from the perspective of donor-created children.   Some of the commenters suggested that various people should not have access to donor sperm (or should only have access to it under certain conditions) because having access to it will allow them to create children who will not be raised in a what they consider acceptable circumstances.    

Shouldn’t we do the same sort of analysis non-donor created children–children who are concieved without the use of any ART?