Posthumous Sperm Donor as Father?

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.)


9 responses to “Posthumous Sperm Donor as Father?

  1. Who is a father or mother is a very difficult question.

    It is quite common for a lesbian couple to use a known sperm donor. In some cases he acts in a supportive role and the children even call him “dad”. If fatherhood is a social role, he is probably a father (some lesbian couples have suggested that his role should be legally recognized, which would lead to the concept of a “three parent” family)

    If the father of a child dies before the child is born, or shortly afterwards, is he a father?. He has no supportive role.

    My own mother died shortly after I was born, so there is only a “biological” connection. Was she then my mother? ( I feel so, and my adult children regard her as their grandmother!)

    What happens in sperm donation for single women is legally speaking very simple: the woman and man involved ( with the sperm bank acting as an intermediator) sign away the legal rights of the child to support from both parents. Society accepts this contract because they assume that the mother is capable of supporting the child herself. Fortunately this is true in most cases because we are talking about upper middle class women.

    However, even such women are ruled by the brutal statistics of mortality tables. When you look at the average age of single inseminated women, you will find that about 5% have died before the child is 18.

    In my opinion “good” law should be judged according to the extent into which it is able to translate moral responsibility in a legal one. A sperm donor certainly has a moral responsibility, because he can’t be in doubt about of what he is doing. It is a very beautiful thing: to help create a new life. Wouldn’t it be even more beautiful if he gave a little bit of support to this new life,if necessary? Or is the truth rather the sordid one, that to create children is more convenient than to support them? and that this is the whole underpinning of the fertility industry?

    • I’ve never seen the mortality statistic you refer to. Can you give a cite?

      I’m always (and I do mean always, even when I like the conclusion supported) wary of statistics. It’s easy to find correlation without causation. (So, for example, increased consumption of ice cream correlates with likelihood of death by drowning, not because eating ice cream makes you drown, but because when the weather gets warm, both rise.)

      There are a number of things I’d wonder about for the correlation you cite. For example, who counts as “single?” Sometimes lesbians in long-term stable couples get counted as single because they aren’t married. Sometimes they don’t. Anyway, that’s why I’d like to actually look at the statistics you refer to.

      But I’m being picky. There are many layers of complexity in what you say. When you describe what happens with a sperm donor and single woman isn’t nearly that simple in many places. In some states (say, Massachusetts) the sperm donor is a legal father. in other states (say Washington), the sperm donor is NOT a legal father. In still other states (say Kansas), the sperm donor is not a father UNLESS there is a written agreement that says he is. And in yet another group of states (and I’m afraid to name one off hand, because I might be wrong), he IS a father UNLESS there is a written agreement that he is not.

      This variability troubles me, because I worry people do not know the ins and outs of all the state law.

      And then there is the question of moral responsibility. This is one I think you can argue nicely both ways. The sperm donor knows the sperm will be used by someone who does not want him involved and is prepared to raise a child without him. Thus, perhaps it is moral for him to act without any expectation of responsbility?

  2. Thank you for your interesting response.

    Your scepticism about statistics has probably something to do with its use for calculating correlations between different events, without apriory knowledge of cause and effect. Mortality statistics is different, it simply measures the rate at which we die (which is the only event which we all with certainty are going to experience!). The number 5% I quoted, can be found easily. You take the average age of single women who are being inseminated and go into the mortality tables. It varies a bit between different western countries, but not much, and it is not important to my argument.

    Some members of “ethical councils” in various western countries have suggested that the state should take special responsibility for these children who are left orphans, because the state signed away their rights.

    This is particularly interesting for the US in view of the fact that President Obama has promised to sign the UN convention on “the rights of the child”, which includes the right of support from both parents. Until recently, Sweden only allowed insemination of single women if they had a lesbian partner who assumed all the legal responsibilities of parenthood. The reason for this rule was to abide with the UN convention.

    When you suggest the moral escape route: “The sperm donor knows the sperm will be used by someone who does not want him involved and is prepared to raise a child without him”, I wonder where this leaves the child. I am sure that she is prepared to raise the child on her own, but can she?. If she can’t, should we then just say sorry? Is this moral conduct?

    The children of sperm donors don´t remain children for ever, at least not in Canada! At the moment Canada BC has accepted a class suit by a group of sperm donor children to know their biological origin. They argue that they are being discriminated against, compared to adopted children. In view of the sweeping statements about equal rights and non-discrimination in the “Canadian charter of freedoms and rights”, they probably have a very good case.

    I am sure we are only seeing the top of the iceberg, where the “cryo kids” as they call themselves, will claim rights and say that biology is not only important to mothers.

    • Many points raised here worth thinking about. I’ll comment on a few.

      The statistics. (I’m sorry if I seem overly focused on a small point. I do find statistics interesting.) I’m not sure if I understand, so let me check. Is the main observation that a 5% of single women who are inseminated are old enough so that they will likely die (for whatever reasons–not related to the insemination) within 18 years of the date of insemination? And then this important because since they are single than this means the child is left an orphan before 18?

      If I’m understanding this right, then I think I see your point, but I’m not sure where it leads me. I suppose this could lead to the conclusion that only young single women (I don’t know how young) should be inseminated? But the thing is, we know equally well that some young women will die within 18 years of any given day. (Similarly, some of the older women will live for 20-30 years, but we don’t know which.) It might make more sense for everyone to have a health screening before becoming a parent, and if your life expectancy is below some level (18 years? 14 years?) then you do not get to be a parent?

      I don’t really come to any of those conclusions, though. It terrifies me that I cannot guarantee my children that I will live to see them grown, but my job is to deal with that reality and to make sure that they are as secure as can be. And then to cross my fingers.

      Then there are some larger points. There are many children in our society who live in poverty. Some of them have no parents, some of them have one parent, some of them have two. I think I could plausibly make a case that our society is morally obliged to ensure the well-being of its young. To do this, we need to ensure adequate housing and medical care and education for all children, no matter whether they have parents or not. I’m not saying we need to agree on this, but that’s at least as much a moral stance as any other, and it then leaves individuals free to decide about child-bearing.

      I think we probably should anticipate, too, that some people who think they can raise children (singly or in pairs, via ART or via conception via intercourse) may not in fact be able to follow through. Perhaps as a matter of morality we should be willing to take over in those instances.

      All I really mean to suggest is that there are many different views about what is moral. Surely some people are irresponsible in their decisions to have children. But I’m not at all convinced that you’ll find a disproportionate number of irresponsible people among the single women choosing to have children. They’re at least planning ahead.

      Finally, there’s a difference between saying that a sperm donor is an interesting person who a child should have information about, perhaps even access to, and saying that a sperm donor is a legal father. I’m not enthusiastic about the latter proposition, but I’m open to considering the former. (I’ve discussed this earlier on the blog.) I suspect it is more likely that folks will agree to use known or identity release donors if it is quite clear that the donor is not to be a legal father.

  3. Thank you for your response,

    Here is a link: to the life tables for various countries. According to the CDC,the average age of women in the US who use ART is 36. For single women it is probably a little higher(in some countries where they include family status in their statistics it is about 41) The life tables for the US says that 98% of all women are still living at the age of 36 and 94% at the age of 54. This means that about 4% have died in this 18 year interval. If you use age 40 as starting point you get around 5%. The numbers don’t vary much between countries.

    For a child with two parents the corresponding risk of becoming an Orphan is only 4%x5% = 0.2%. However, as I said in my previous post I don’t think the exact numbers matter. My question is how we explain to these unfortunate children, that they were stripped of their legal rights because their conception was a “treatment”.

    I am not surprised that people do such things. They do it because they have the power to do it, and because it is convenient for them here and now. I am more surprised that the law accepts it. In an 800 year old European law text it explains in the preamble why there has to a law of the land: “because what would otherwise happen to the widows and the fatherless?”. I think it is just as true today, as 800 years ago, that the reason for having law is to protect the rights of those too weak to fend for themselves.

    You are very right that society should support these children, but even in a rich welfare state like Canada (where a gross income tax of 50% is far from unusual), children of single mothers live in relative poverty. When the number of old people explodes it is going to be a nightmare. I doubt that politicians will consider to compensate donor children for their loss. It would be to admit that their rights were violated in the first place. But maybe some time in the future in Canada, where the fertility industry is rapidly disappearing (all parts of the human body including blood and sex gametes are exempted from the market)

    • I think I’m now set on the statistical point. Thanks.

      I wonder if what we disagree on is what rights the children have.

      I might agree that the children have a right to know where their DNA came from. I’m not sure. But that isn’t going to help with the support problem you identify. And that right doesn’t require that donors be recognized as fathers.

      I might agree that the children have some right to some level of financial support generally. But I wouldn’t tie that right to the people who produced the DNA. It seems to me if we really want to ensure children get proper financial support, that’s going to be a very partial solution–lots of time the DNA providers (I’m not only thinking of donors here) simply do not have resources.

      I don’t agree that the children have a right to have the DNA sources legally recognized as their parents. I am not entirely sure where such a right might come from. Is it natural law—as in by the law of nature, these are the true parents? I think on this we disagree. As I’ve made clear elsewhere on the blog, it seems to me there’s a good deal more to being a parent than just providing the DNA.

      It isn’t that I mean to seem insensible to the needs of children. But I’d like to think carefully about the different sorts of needs children have (the need for financial support, the need for adult nurturance, perhaps a need for information about their genetic lineage) and consider how best to satisfy each of them. I’m not persuaded mandating that a sperm donor is a father solves much of anything.

  4. It may not so much be DNA in itself which is important, but rather the act of creating a child (which technically speaking involves DNA). We all carry a responsibility for those of our actions which we can foresee the consequences of (with reasonable probability).

    Lesbian couples have argued that they should be compared to infertile heterosexual couples and not to single women. At least in theory the responsibility of the sperm donor could by law be transferred to the lesbian partner like it is done for an infertile husband. I am not sure, but they are at least trying to address the concern I am raising.

    I agree, that in an ideal world the financial support of children should be a community responsibility and not only a parental responsibility. In the real world we should probably be happy if we can support the elderly during the coming demographic crisis.

    In a world of DNA genealogy and the internet, anonymity for sperm donors is an illusion. It would become us well to give children access to their own records before they find out for themselves (as they have already started to do). Anyways, something that has to be kept a secret should probably not have happened in the first place.

    • I am inclined to agree that given all the technology in our hands, anonymity for sperm donors is increasingly unreliable. And maybe that’s a good thing. More likely to remain anonymous are the countless guys who participate in relatively casual (and anonymous) one night stands. In any event, perhaps the best thing to do is to deal with the reality of non-anonymity. At the risk of repeating myself, I wouldn’t do that by declaring all the donors are parents.

      I’m interesting in your first observation–that it may not be DNA, but rather, the “act of creating a child.” That’s something I might agree with, except I bet we’ll disagree about what the relevant “act” is. Is engaging in intercourse the one and only act of creating a child?

      If you consider ART there are so many acts and so many actors. The doctors, the lab techs, the people who purchase genetic materials, the people who provide genetic materials-each of them acts in a way that it necessary to the creation of a child. They cannot all be parents, can they? So either we choose among them or we say no ART? (Both are possible positions.)

      What about saying that where there is a shared intention among the actors about who will be responsible for the child (that is, all the actors agree), then the agreed upon person or people is or are the one(s) responsible?

  5. Even one-night stands will not be anonymous in the future. The guy in question leaves a finger print: his DNA. When Genealogy DNA data bases, in a not to distant future, reach the 1% level of the population there is a high probability that it will include either one of his second or third cousins, and then he can be traced without too great difficulty. People are not generally aware of this fact and don’t know that the national DNA databases in the US and UK are used by the police in this way. But this is a different discussion.

    I don’t believe that the technical method of fertilization is relevant, neither morally nor legally. It is the moral act, not the technical method that is important. Believe it or not, but some women actually sleep with their sperm donor There even exist women in their thirties in Europe (where it is legal)who use 17 year old boys to get pregnant and report them as fathers afterwards. It attracted the attention of some statisticians and politicians payed enough attention to warn women against using men as “natural” sperm donors, indicating that such behaviour could undermine the fertility laws.

    Morally speaking everybody involved in a fertility treatment are responsible, but you are right that they can not all be parents. To be a parent is a permanent role, and hardly anybody can do it on their own, not even two biological parents. Unless you are very rich (and certain to remain so and remaining alive) you should be sure that you have a permanent support network, which for most people mean their extended family.

    I read a sad story of a woman who was dying from cancer and having a donor child. Her family would take no responsibility for the child because they could not relate to the way it had been created. She made an adoption agreement with another woman who had used the same sperm donor. I hope it worked out for the child.

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