Sperm Donors, Anonymity and Parental Status: My Last Thoughts (For Now)

I’m still amazed at the discussion that developed in the comments over my last couple of posts.  It’s been helpful to me to be pushed on my thinking.  I’m grateful to those of you who took the time to write.   I want  to take one more run at the question of sperm donor anonymity and sperm donor parental status.    Then I think I’ll move on for now, at least. 

Ultimately the point I want to make is that donor anonymity and donor parental status are necessarily connected.   If you want people to use known or identifiable donors, then you must provide that the donor is NOT a legal parent.   If you insist on both identified donors and legal parental status for donors, then you make the use of sperm donors implausible.    

I will try coming at this from a different direction this time.  I’ll also try to be specific about the assumptions I’m making along the way so that you can figure out exactly where you disagree with, if you do indeed disagree. 

I think the availability of donor sperm is generally a positive thing.   It allows people who do not have access to sperm in its original packaging (a  man) to have kids.   This would include heterosexual couples where the man does not have viable sperm and also women seeking to raise children without the involvement of a man.   The latter group includes both single women, lesbian or heterosexual,  and lesbian couples.  

(I know of course that some people will say that it is morally wrong to use donor sperm at all and some will say that it might be okay for a heterosexual couple but not for a lesbian couple or perhaps a single woman.   There are many ways in which we could disagree here.  I’m just stating where I start.)  

Since I think donor sperm ought to be available to people, the next question for me is to consider the conditions under which it ought to be available.   Many of the recent comments suggested that donor anonymity was problematic.   Whether I personally find it problematic or not, it’s obvious that some children are caused real pain by not having access to donor information.   In order to address this concern,  maybe my next step would be to say that donor identification in some form should at least be available, possibly encouraged, and maybe even required.  

The third question for me is what legal status the donor should have.  And I do stress legal here.  

One possibility is that we could recognize the donor as a legal father.   My problem with that would be that it undermines the very point of making donor sperm available.  None of the people I identified who might use donor sperm want the sperm donor around as a father.   

Beyond that, to the extent donor sperm will continue to be used, recognizing the donor as a legal father surely encourages the use of anonymous donors.  An unidentified sperm donor father cannot possibly exercise his rights.   Thus, if the goal is to encourage (or even mandate) the identification of donors, then giving the donor parental rights is completely counter-productive.      

Though I conclude that the donor ought not to be recognized as a parent this does not resolve the question of the legal status of the donor.   It’s perfectly possible to create a new legal category for the donor.   People in that category could have defined legal obligations or legal rights.    I’m thinking particularly that some might want to articulate some obligations that the donor has vis-a-vis any child that results from his donation.   (I’m not yet sure what rights these might be.) 

Finally, but not because it is least important, you might want to consider rights of the children created via donor sperm.   I’ve seen many suggest a right to identifying information about the donor.   There are other possibilities, too, I’m sure.   Of course, if there is a right to identifying information this means no more anonymous donors.   And that, of course, will loop me back to my earlier point:  if you think sperm donation is useful AND you think that children have a right to identifying information, then  you have to set it up so that the donor is not a legal parent.


12 responses to “Sperm Donors, Anonymity and Parental Status: My Last Thoughts (For Now)

  1. Personally, I’m not at all convinced that the use of donor sperm is a positive thing to be encouraged. I want to examine the use of donor sperm by all its main user groups to show why donor sperm is neither necessary nor the best option for two of those groups.

    I’ll start with heterosexual couples because they were the first and only user group for many years. At the present time they comprise the smallest of all the user groups and number something less than ten percent of all donor sperm users. This is because of several reasons. There are now some excellent medications that improve sperm count to an extent that sperm count becomes of the normal range or at least enough with which to perform IUI or IVF this can be the use of fertility drugs such as clomiphene or hormone treatments such as gonodotrophins, interestingly enough the same drugs used for women. For those men with still practically no sperm count, the use of ICSI where even a single immature sperm cell can be used to fertilize an egg now achieves pregnancy for the majority of those men. For men with inheritable disorders the advent of preimplatation diagnosis of the embryo to screen for inherited disease PGD has now almost eliminated this group. A fertility doctor specialising in male fertility recently told me that for men the use of donor sperm was now largely a matter of economics. Pretty much only couples without sufficient insurance or money will now choose donor sperm above assisted conception using their own sperm. So for heterosexual couples I would say that mandating insurance companies to cover male infertility with uses of medicine or new technology would virtually wipe out this user group. For the remainder of heterosexual couples or ones which have been unsuccessful in trying, I am still not convinced that the use of donor sperm is generally a good solution. For one, many men are not thrilled about using donor sperm and often get brow-beaten into agreeing to it, they generally get no counseling about the difficult feelings they will experience seeing their wife become pregnant and bond with another man’s child and the inadequacy and hopelessness this generates in them. The widespread divorce rate amongst couples that have used donor sperm testifies to this. Secondly, adoption is reasonably available for this group and the outcome of adoption is usually better for a family like this rather than the imbalance where a donor child is only genetically related to the mother and frequently resented by the father.

    The next group I want to examine are single heterosexual women. In the overwhelming majority of cases choosing Mr Right DNA from a catalog is not the best solution for single women who desire motherhood. Firstly, single parenthood is much tougher than many single women realize and women who become choice moms often find that they actually struggle far more than they thought they would with financing and caring for a child alone. I recently heard from a social worker friend of mine that his big rise in new clients at risk are choice mom families. It stands to reason that just because someone conceives artifically, does not grant them immunity to all the problems that accidental single mothers, widows and divorcees face, such as loneliness, depression and inability to properly care for and discipline the child(ren). But choice moms must contend with yet a further difficulty than other single moms. They have no means of child support other than what they earn themselves; even widows can rely upon social security. Another further problem that choice moms face is less assistance from others to take over for them or to give them a break from the kid(s). Most other single moms share at least some custody with the father or he takes the kids on visitation or else his parents or siblings help out. But the biggest thing that many choice moms realize too late is that having a child does not cure them of their still intense and maybe even intensified desire for adult companionship and romance. Yet, that becomes less likely with a child(ren) in the picture. Quite predictably just having the availability of donor sperm has encouraged many women not to bother with the sometimes frustrating experience of dating, to those single women’s detriment and certainly to the detriment of their children. A better solution for single women is to date more, choose more sensible men to date and if all else fails to create a co-parenting arrangement with a single man or gay guy or couple. In any event single women hold a trump card, they can always get pregnant the traditional way via a one night stand or by accident hmmm on purpose.

    The group that perhaps benefits most genuinely from donor sperm, and for whom there are the least downsides both as regards the intending parents and children, are lesbian couples. For lesbian couples the loneliness, lack of companionship, overwork and poverty facing single women are non-issues or much reduced and they also don’t face the issue of resentment and anger that heterosexual men have to struggle with when they experience their wives bearing and bonding with another man’s child. Lesbian couples also have the prospect of both bearing the same donor’s children which can further cement their relationship. So I support the use of a sperm donor for lesbian couples with caveats. Firstly, they should be married or in a civil partnership to demonstrate the solidity of their relationship. I know this would seem to discriminate against lesbians living in states without that option but I think safeguards have to be in place for the offspring that result. Secondly, both women would have to agree in a legally enforceable method that they will both be the legal parents. Thirdly, the women must have to undergo counseling in which other parenting prospects could be discussed such as partnering with a gay man/couple or adoption. Fourthly, the donor must be identifiable at least to the offspring.

    So only in the context of a lesbian couple would I reluctantly allow a donor to be a non-legal parent although I would insist that he be identifiable and have certain obligations such as being obliged to provide and update health information as necessary.

    Otherwise I would define men providing sperm for single non-cohabiting women or unmarried lesbian couples as the legal non-custodial father, however as I have stated before I would not allow either the man or woman to sue in family courts for more rights or responsibilities than mutually agreed upon between the two parties in writing without leave of the court.

    As regards married heterosexual couples I believe that experience has demonstrated that using donor sperm in general generates more problems than it solves and should not be allowed for heterosexual couples.

    • I’ll close my participation in this discussion (for now) with one last comment. It’s good to be clear about where we disagree.

      I’m not prepared to make the generalizations that you are–that single mothers are going to be stressed, poor, etc, for example. (There’s some single mother discussion back in earlier posts and of course many other blogs.) Some are but many are not and I’d give women the freedom to make their own decisions in this regard. To me, that’s a central point about women’s autonomy.

      Same deal as to the men in the heterosexual couples (and I don’t care if they are married.) Some may have the feelings you describe and an anonymous donor would be a poor choice. But clearly some do not. Again, I’d give people the opportunity to make their own choices about which group they belong to, and for those who choose it, I want to make donor sperm available.

      I’m suppose I am convinced that it is very difficult to make broad generalizations about these sorts of questions and that it is often a mistake to make policy based on such generalization. Apart from the fact that the generalizations may not be reliable, none of these are universals–they are at best statements about MOST of whatever category you discuss. What about the people who are not in the “most” category?

      To harken back to where this all began, it’s clear to me that some donor-created children have a felt need to find their donors and that some do not. I prefer to recognize that our reactions to these sorts of things do vary and try to shape law that will accomodate more people. That means making donor sperm practically available just as it may also mean ensuring that children have the option of finding the donors if/when they want to.

  2. The reason that I believe these generalizations are important and should be the basis for developing policy is because the lives (happiness and prospects) of people who don’t have to be born are at stake here. So even if let’s say half of all choice moms cope with the pressures and a third of all married couples stay together after conceiving through a donor – the prospects of a happy home life are not very good for too many donor children born this way to these sorts of families.

    I strongly believe that society has a right and obligation to restrict the needless procreation of children through the use of donated gametes when there is evidence that their lives are likely to be blighted.

    I do not believe anyone has a constitutional right to artificially conceive through a stranger’s gametes when that stranger has no interest in being a parent. Hence I think it right and appropriate for fairly stringent legislation about the use of donor gametes.

  3. Sandy May,
    I very much appreciate your insight and agree with much of what you’ve shared with exception to this:

    “So only in the context of a lesbian couple would I reluctantly allow a donor to be a non-legal parent although I would insist that he be identifiable and have certain obligations such as being obliged to provide and update health information as necessary.”

    I agree with much of what you wrote BUT, as a ‘donor’ conceived person, no matter what my family arrangement, I’d still want to have at least the opportunity to have a “dad” like relationship with my father. That is just me of course but I don’t see how children of lesbian mothers are any different than the majority. Knowing a name and medical updates, for some/many, is a nice bone to throw but time will tell if that is really all they want/need.

    Of course there is the topic of ‘egg donor conceived’, ‘gestational surrogate conceived’ and ‘traditional surrogates’ (most often with 2 dads) that hasn’t even been discussed.

  4. What’s with all the strings, can’t people just be happy to be here? I do not know my father but I really couldn’t care less. I have enough people in my life that love me and mean something to me….not just because I came from their sperm.
    I love the crappy/hard childhood=should just not be born….good grief. I had one of the worst imaginable childhoods and not only am I thankful to be here but I feel my rough start helped make me who I am today.
    As for your brilliant idea of married couples not being allowed to use donor’s, I find it repulsive.

  5. Karen, I’ve tried very hard not to just reject the use of donor sperm in a blanket way, but to analyze the need for, benefit of and difficulties with using it for the most common categories of user.

    By just examining the benefits vs difficulties inherent in using donor sperm for two out of the three groups it is fairly evident that the benefits are more often outweighed by the disadvantages just for two of the three major user groups and even without taking a child-centric perspective at all.

    Obviously most people would not use donor sperm if they had the foresight and knowledge of the problems that ensue, so in a particular type of way a policy forbidding donor sperm for married heterosexuals and single women is paternalistic. But there is a good track record in the government being paternalistic such as mandating seat belts, forbidding underage sex, not allowing adults under aged 21 from drinking alcohol, forbidding people from using heroin or cocaine, forbidding people from building ramshackle home extensions (requiring permits and code compliance) – and all those matters only affect the individual, not kids that don’t even need to be conceived.

    I agree that when taking a child-centric view, there is definitely a good case to be made that all sperm donation where there is legal detachment from the genetic parent should be absolutely outlawed, but unfortunately in the society we live in donor offspring’s needs are given NIL CONSIDERATION.

    Hence, I’ve tried to initiate a discussion based upon the adult-centric/intending parents-centric view to show that even from that perspective donor sperm usage frequently has a very poor outcome.

    As regards donor egg, surrogacy etc I do have formulated views but the discussion about them is different from donor sperm.

  6. Sandy May,

    I’d like to comment on a number of generalizations and assumptions you have made here.

    You have stated that:
    “Obviously most people would not use donor sperm if they had the foresight and knowledge of the problems that ensue.”

    You are presuming that the problems you refer to (divorce in heterosexual couples, poverty and high stress level in single mothers by choice, donor conceived children who are miserable because they don’t have a “father-child” relationship with the donor) happen in most cases where donor sperm has been used to conceive.

    I am not sure I understand that presumption. It appears to be based on annecdotal evidence from people who have experienced these problems. I would remind you that often, the people who discuss an issue are the ones who are dissatisfied with their own situation. There are likley thousands and thousands of donor families out there (like mine) who do not have the problems you discuss. You don’t hear much about them because they are too busy going about their lives and don’t feel the need to speak out as the issue does not affect them enough to do so.

    The only reason I am commenting now is because I had a couple of spare minutes and a link to this blog was on a message board I keep an eye on for other reasons. I felt it is important to point out that you paternalism is based on what I perceive to be weak assumptions. The suggestion of using the law to affect people’s rights based on that kind of assumption concerns me greatly.

    The other comment I would like to make is that you have actually suggested that it would be preferable for a single woman who wants a child to get pregnant from a one-night stand or to trick a man into getting her pregnant. A one night stand would have the same effect on the child as using a donor in terms of a relationship with the father, and can be extremely dangerous to the woman’s health.

    In the case of tricking a boyfriend into fatherhood, again, you have a potential problem with the relationship between a child and a father who may not have wanted him or her.

    In both cases you have a situation where the woman can force the man to pay child support when she conceived deliberately without consulting him – which is offensive.

  7. Marlene, You said: “The suggestion of using the law to affect people’s rights based on that kind of assumption concerns me greatly.” – But think about this, there is quite probably not even a constitutional right for someone to have a baby using donor sperm. But there is an innocent child that results so what about considering its rights!

    Certainly when someone has a baby via intercourse there is only the parents’ rights to consider, because the parents have a constitutional right to reproduce through coitus no matter how hopeless a life they may give to a resulting child. But that same right does not exist when using a stranger’s sperm via artificial insemination. In that case there is no constitutional right to protect and hence it is right and proper that the law should protect a potential resultant child as much as possible. In fact it should be the rights of the resultant child that should be foremost under consideration.

    You also said: The other comment I would like to make is that you have actually suggested that it would be preferable for a single woman who wants a child to get pregnant from a one-night stand or to trick a man into getting her pregnant.
    I actually do think even a one-night stand is preferable and more responsible than using donor sperm. Firstly, at least a woman even on a one-night stand is taking the responsibility of personally checking out and vetting her child’s father, Secondly, she is providing a legal father for her child and because she at least would know his identity she would not leave her child with a loss of self-identity. I am not advocating a one-night stand with a complete stranger rather a calculated one-night stand perhaps with a willing helpful male friend.
    I also don’t think that getting pregnant by accident on purpose is tricking a guy into fatherhood. We must presume that an adult male knows how babies are made, and if he doesn’t choose to wear a condom, it’s certainly his choice!

    What would be interesting is to know whether the donor conceived commenting here would have preferred being the resulting child of a one-night stand or of artificial insemination by an anonymous sperm donor.

  8. Sandy May asked: “What would be interesting is to know whether the donor conceived commenting here would have preferred being the resulting child of a one-night stand or of artificial insemination by an anonymous sperm donor.”

    I’d love to answer that question but my personal feelings are not NECESSARILY representative of the majority and don’t really add much to the bigger issue/problem. Instead, I’d like to share a policy recommendation, proposed by another lawyer – William C. Duncan, which I strongly agree with.

    (Read his recommendation below – remove spaces to link)

    “Deconstructing Parenthood”
    http://www .profam. org/pub/fia/fia.2204. htm

    Quote from article:
    “Reclaiming Legal Parenthood

    The law does not have to facilitate this social experiment, however. While there are appropriate uses for some reproductive technologies (for instance, allowing the fertilization of a wife’s egg with a husband’s sperm when pregnancy and childbearing might not be possible in the normal way for the married couple), there is no reason the states cannot prevent uses of these technologies that commodify children and parents and work against the welfare of the children that are to be created technologically. Not all legal reforms will be politically viable immediately, but putting that question aside, there are a number of reforms states can and ought to undertake.

    The most sweeping would be to limit access to assisted reproduction to married couples with their own genetic material. This is currently the policy in many nations and has recently been the policy in a number of others.[27] It addresses the concern of children being deprived of any connection to their biological parents and ensures them a chance of being raised by a mother and father. The child born as a result of such an arrangement would also benefit from the increased stability inherent in the marriage relationship.[28]

    The likely objection to such a policy would be that it interferes with an adult’s right to procreate. Such a right was articulated in the United States Supreme Court’s important decision, Skinner v. Oklahoma,[29] where the Court held that a state couldn’t sterilize a person against their will. The court did not say, however, (and it is hard to imagine a responsible court would) that individuals have a right to acquire a child by any means. Indeed, it is commonplace in constitutional law that there is no right to adopt a child.[30] Similarly, at least one federal court has rejected a prisoner’s claim that his constitutional rights were violated when he was not allowed to send his sperm by mail to his wife.[31] These and similar legal rules recognize that a principle meant to restrain state coercion in procreative matters (like a right not to be sterilized) does not necessarily create a duty in the state to make all procreative options available to adults (and certainly not upset traditional legal notions about parenthood to facilitate them). In addition, the pressing concerns about assisted reproduction, especially for children, described above would certainly counterbalance any adult autonomy right that might be asserted.

    A more modest response to assisted reproduction technology would be for the state to end the practice of anonymous sperm and egg donation. The current protection of anonymity disserves children who are left in the dark about an important part of their identity and genetic background. It also provides a safe harbor for biological parents who want to reject any responsibility for the children they create.

    Along with anonymity, states could allow donors, like all other biological parents, to be liable for child support. This would very likely dramatically dampen enthusiasm for making donations, but it would be consistent with traditional legal notions regarding parents’ duty to support their children. It is a firm principle in American law that a parent cannot bargain away a child support obligation, such as in a prenuptial contract or divorce agreement. There is great irony in the fact that the state goes to great lengths to collect child support from some fathers (even those who had only one contact with the mother and those who specifically did not intend to become parents), some of whom are doing their best but are treated like criminals, while simultaneously shielding other biological fathers from any parental responsibility because their role in the baby making process was mediated by technology.

    The states could also prohibit any compensation for egg and sperm donations. A number of states now prohibit surrogacy arrangements because of the concern that they are exploitative and bear an uncomfortable resemblance to baby selling.[32] These concerns also apply to the selling of one’s biological material to be used by another person to create a baby.

    At the very least, courts should refrain from adopting legal rules (like de facto parenthood) that give parental status to non-parents without requiring a termination of the natural parent’s rights and requiring an adoption procedure.

    These kind of legal reforms would go a long way to restoring the law’s respect for natural realities of family and parenting that have historically been reflected in our laws.

    What does the brave new world of consumerist parenting hold in store? It may take years to begin to quantify that, but a vision of family life dominated by adult desires, where children and parents are instrumentalized, and “choice” is exalted as the reigning value should warn us to back away from the brink. Ultimately, it should call us back to the inherited understandings of parenthood that have served us so well.

    Historical experience and common sense suggest that mothers and fathers are not fungible, but the new parenthood assumes the exact opposite. And the children who are subject to these adult transactions, of course, cannot be consulted until it is too late.”

    And his most recent article:
    htt p: //article. nationalreview. com/?q=YzcwZjA0ODk2NzM2NzY4N2IyYTQwYmY1NGQ3NGUyODc=

  9. Sandy may said:
    “What would be interesting is to know whether the donor conceived commenting here would have preferred being the resulting child of a one-night stand or of artificial insemination by an anonymous sperm donor.”

    Why not ask if I would prefer to not to be born at all? Don’t take this personally but I find this type of questioning demeaning. These lines of questioning are hypotheticals which are based to elicit a certain response.

    However, at least in a one-night stand my mother and father would have been in the same room, had some sort of relationship (even if very fleeting), and everyone would recognise that man as my father and I would not have to justify myself to thousands of others why he would be important to me. And I would no longer be a medical experiment in social science (and yes as a scientist I can recognise an experiment when I see one). So from that perspective yes a one-night stand is preferrable.
    But then I could argue that I would have missed out on a loving dad who cared for me greatly.
    We cannot continue to use the ends to justify the means when it comes to donor conception. From that I mean that we cannot use an arguement of it is better to be alive than not as a way of justifying the potential harm and losses which can be suffered by DC offspring when the procedure is a well planned and thought out event which has known complications (adoption parrallels).

  10. A 61-year-old woman gave birth to her own grandchild using an egg donated by her daughter

    A 61-year-old woman gave birth to her own grandchild using an egg donated by her daughter, a clinic in Japan has said.
    The surrogate mother is believed to be oldest woman to have given birth in Japan. http://infertilityuk.wordpress.com/2009/09/23/egg-donation/

  11. sandy may,
    I have limited contact with donor offspring, but there are many you can contact via the internet….

    but on the flip side, amongst my friends who were abandoned early in life by their fathers, none of them feel it would be better if they did not know who he was.

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