Within the last several weeks I’ve discussed two cases of posthumous sperm collection–one in NY and one in Texas. (I had been calling it “donation” but I’m now thinking that collection is more accurate. “Donation” seems like an act by a donor, and in these cases the donor is dead.) I’ve also written about one instance in which a man was able to use his own sperm for reproduction 22 years after donation. (There are also some similar older posts.)
The main question for the courts in the posthumous collection cases is whether or not to allow the collection. These are cases in which the deceased man didn’t leave clear written instructions and wasn’t in the process of finalizing arrangements for donations. Instead, in both cases someone (mother in one case, fiancee in the other) can testify to the general desire of the man to be a father. In general, I see no real harm in allowing the collection in these cases.
But there’s a second question that I’ve brushed by in passing and would now like to move to the center. If the sperm collected after death is used, will the “donor” be the (or a?) father of any child that results?
There’s really no suspense about my answer to this question–“no.” If you look way back on this blog you’ll see I’ve frequently rejected the idea the genetic connection should be relevant to recognition as a parent. Consistent with that, I don’t think that sperm donors ought to be recognized as legal parents, at least not based on the genetic link. (There may be other reasons to recognize them as legal parents, as in the case of Chris Biblis.)
I actually think these posthumous collection cases offer a good opportunity to see why sperm donor ought not to be considered legal parents. But first I want to emphasize that I am talking only about legal recognition here.
If Gisella Marero uses the collected sperm to become pregnant some time in the future, she’ll be the mother of any child (or children) that is born. I assume she’ll want to tell that child about the man she loved, whose sperm was used to help create the child. She may even think of Johnny Quintana as the child’s father and the child may think of him that way as well.
These things are not the concern of law. Would it be good for the law to recognize Johnny Quintana as the child’s father? If the child is born three years from now? Five years from now? Ten years? Twenty?
The legal father has a variety of obligations with respect to his children–support, to take one well-known example–that Johnny Quintana cannot possibly fulfill. The legal father also has a variety of rights or privileges, including those with regard to decision making, for example. Again, Johnny Quintana cannot share decision-making authority for any children born using his sperm.
It is part of the tragedy of his untimely death that Johnny Quintana cannot know and emotionally support any children that are created using his sperm. He cannot play a parental role. He cannot have any kind of relationship with them at all, beyond those constructed in memory and imagination. Again, that doesn’t mean he cannot be an important figure.
You might have thought of a range of other issues that could come up. Will the kids be entitled to a share of his estate , as his presently living child might be? What about social security? These are good questions, but they are actually a bit further afield. (For what it is worth, I don’t think we can wait ten/twenty years before deciding we’ve seen all the heirs likely to appear.)