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.   So certainly before I made the person in question a legal parent I’d ask whether this is a person we want to have power over the child.  

Beyond that, having power over the child effectively gives you a certain amount of power over any other legal parents.   For example, one legal parent might be able to prevent another legal parent from moving out-of-state to take a new job or cement a new relationship.   At the very least, one legal parent can make it more difficult for the other legal parent to do these things.

This concern is part of why I am resistant to designating the man in question as a legal parent.  I’m wondering if there is some affirmative reason to make him a legal parent or if the problems of access/relationship can all be addressed without that designation.

32 responses to “A Quick Question about Children and Their Sperm Donors

  1. I am a very active ‘donor conceived’ blogger/advocate for the rights of the child. I posted/shared your request for ‘dc’s’ perspectives viewpoints on a yahoo group for ‘donor conceived’ adults as well as an international group of ‘donor conceived’ adults. This is an emotionally loaded issue for many of us and most DO NOT WANT to even talk about it for that reason. I hope a few might answer your request/question but no surprise if you only hear from those of us who have come to terms/wear our ‘donor’ conception openly, do not worry about hurting family and who are willing to speak openly/honestly/even if it crosses the political correctness line. I’m one of those but I don’t want to share until we’ve given time/opened dialogue with those less open/out there as I am (and others…) I’ll give it a couple of days then post my thoughts.

    • The first question should really be should sperm donation even be allowed and if so in which circumstances? To me your question is a bit like taking another human rights situation like slavery as a de facto situation and then asking eg. at what age should a master be entitled to sell a slave child?

      However in seeking to answer the question you asked.

      My gut feeling is that if sperm donation is allowed then no child should ever be denied at least two legal parents So if a married woman uses a donor either her husband can be the second legal parent or the donor, depending on whether the husband agrees or not to be the legal parent, a married lesbian partner could be the legal parent, but as regards unmarried women the donor must be the legal parent.

      However, I really don’t see why a donor legal parent need have powers over the woman and child. Such powers even in the case of intercourse only come via court order – not automatically.

      So my suggestion as stated several times before is that donors to single women or unmarried lesbian couples should be considered as legal parents, but without rights or responsibilities except as mutually agreed or ordered by the court. But the kicker would be that the court must give leave prior to such a hearing for rights and responsibilities be allowed to be scheduled. It should be the practice that leave should be only allowed by the judge in extreme circumstances eg in cases of dire hardship and fatal illness of the mother or where the child has been taken into care because of the mother’s neglect.

      As regards sperm donors to married couples, I believe they should not be allowed to be anonymous and should owe an ongoing duty of medical disclosure to recipients and children until the child reaches the age of eighteen.

      • I’m going to try to reply to these comments since I solicited them. But I will also try to avoid being too repetitive. To some degree, I may simply try to articulate where I think points of agreement or disagreement lie.

        Here I think I disagree right upfront with something Sandy May says. Indeed, this one point of disagreement may lead our opinions to totally diverge.

        I don’t see contributing sperm to the creation of a child as all that important. I mean, obviously it is a necessary contribution–no sperm, no child. But for me it need not have legal significance nor does it have all that much social significance for me personally. It’s interesting, it may be important to know for any number of reasons. But it simply does not follow (for me) that you are the legal father of the resulting child.

        I don’t think this is a point on which one can prove one is right. I know many people disagree with me. The best I can do, I think is to say this is an assumption I start with and then try to be consistent about it. So, for example, if sperm doesn’t make you a father then you get the same outcome for sperm donor and one-night-stand guy. And it doesn’t seem at all like slavery to me. It’s closer to donating blood. But these things just follow from my initial assumption. If you disagree with the assumption you likley won’t agree with these points.

        The only other reponse to this comment I’d make is that I think you cannot say someone is a legal father but doesn’t have rights. Saying a person is a legal person is, by definition, endowing them with rights–and rights that are very hard to take away. If you do not want a person to have parental rights, you need to give them some other status. I think this is largely a technical disagreement, but since I do teach law, I wanted to be clear about that.

        • Julie,

          You stated: I don’t see contributing sperm to the creation of a child as all that important. I mean, obviously it is a necessary contribution–no sperm, no child. But for me it need not have legal significance nor does it have all that much social significance for me personally.

          If procreation is of little importance to you – why on earth are you a family lawyer?

          Despite procreation being of little importance to you, maybe consider the reasons why it is not important to you?

          It happens to be of immense significance to almost all people and indeed all living things. In the animal kingdom there are many species in which males literally die to get a chance at insemination. Inseminating a female is probably the most fundamental biological urge of males in any species. It is often far more important than survival itself.

          So why is it not important for you.?

          I think it is critical for you to consider the connectedness you have experienced with your father, boyfriends, husband to examine what you don’t respect and consider important the role a man has in giving life to a child.

          After all, the only thing a man can do to give life to a child is provide the sperm – half the genetic blueprint! (Seems pretty major to me!) He can’t carry the child or give birth to it. So why downplay the man’s role in procreating a child?

          Personally, I cannot think of a more significant decision than to decide to procreate another human. Sperm donors are fully aware that they are procreating, they sign consent for insemination with their sperm and write messages to their offspring. It must be assumed that since only adult men, usually college students are recruited as donors, they are fully aware of the immense significance of their role in bringing children into this world.

          • I teach and I think about family law because I care deeply about families, which to my mind come in an infinite variety of configurations . Part of the challenge of the law is to at once accomodate the variety and provide some real protections for the connections people forge. I don’t profess to have all the answers.

            I know many men who are terrific fathers. I have no idea if they are genetically related to their kids or not and I do not feel that I need to know. I see what they do for/mean to their kids. In fact, I think it insulting to put them in the same category with someone who is (I’ll use someone else’s phrase) nothing more than a casual fornicator. What makes them fathers isn’t the genes. It’s what they do.

            Finally, I disagree that providing sperm is the only thing men can do to give life to a child. I don’t think of “giving life” as a narrow and biological act that’s over in a few minutes. A man can commit himself to raising his children in a thousand different ways over the course of a lifetime.

  2. OK following on from previous discussions:
    Yes by definition a parent is a progenitor and therefore my sperm donor/vendor father is my parent.
    However, does this mean that because you are defined as a parent under our language does that mean that he automatically is a “legal” parent under each jurisdiction’s law. I know where I live that legislation has been set-up that prevents any sort of legal responsibility financially or otherwise in this situation.
    I think that it is just a matter of separating parenthood from legal parenthood/guardianship.
    Do I want my biological father recognised as my parent – yes. Do I want access to him, his family, medical history etc – yes.
    Would I want the man who threw me away for a few bucks to have had any sort of legal power over me when I was a child – no.
    So I would hope that under your line of questioning that the problems that us offspring deal with could be addressed without designating him as a “legal” parent.
    However, I think in extreme situations whereby there has been a forfeiture of legal parenthood (death, incapacitation etc), then these next of kin should have the option to pick up the slack if they so choose and is also of benefit to the child.
    In all situations the welfare of the child should be the paramount concern rather than a secondary passing thought.

    • You’re right that legal parenthood varies from state to state. In particular, with regard to sperm donors you can find everything from “is a legal parent” to “is not a legal parent” and many points in between. (Those would include “is parent unless otherwise agreed” and “is not parent unless otherwise agreed.”)

      I think you are suggesting is that the donor could be a socially-recognized parent but not a legally-recognized one. That would require that the donor be identified, I think, at least at some point. Does that sound right?

      The idea of giving the donor some status that gave him priority as a back-up is an interesting one.

  3. I really think that it’s in the best interest of the child to explicitly not designate donors as legal parents, just because the status of legal parent does convey rights to the legal parent (and interferes with the autonomy of the other parent/s to the child). Requiring the accessibility of information to a donor conceived child from their donor doesn’t necessitate the recognition of legal parent status on the donor. Essentially, access to information in the child’s family history (medical issues, e.g.) that could affect the child’s well-being, is necessary and a part of the child’s medical history- witness any doctor’s office new patient form, 90% of which I’ve seen have family history as a large portion of the information they collect. It only follows that information of so much importance should be available to the child, and I expand this to include adopted children even if you aren’t asking about it here.

  4. You’re asking the wrong question Julie. The question that’s important is “does a person have a responsibility towards his or her biological children?” The answer is yes. Once that responsibility is abandoned all bets are off. There’s going to be no satisfactory outcome from there.

    Asking “what was can donor-conception be changed to make it better for the offspring” is completely missing the point.

    • I’m not sure I asked the wrong question, but I did ask a different question. And I’ve tried to be clear that I would answer the question you pose with “no.” Which is likely where we diverge. (I said a bit more about this in response to an earlier comment and, of cousre, elsewhere on the blog.) Since we disagree about this it is likely we will also disagree about many subsidiary points.

  5. In my answer I am not going to pass judgment on your question. I’m also not sure if your motivation in asking the question is more philosophical or you would like to gather information to form an opinion. Nevertheless, I would like to raise another issue: Can’t this issue just be worked around by not revealing the identity of the donor until the offspring turn 18? Isn’t that the thinking behind some of the laws? When an individual turns 18, the question of exercising legal control over the child becomes moot. I’m not advocating that donor offspring not be told of their origins until age 18 as I’m sure it would be a positive experience for many donor offspring to know the identity of their donor before they turn 18. However, if the law recognizes 18 as the magic number, perhaps working in the current legal system is worth considering as you ask your question.

    • I obviously have opinions, but I also realize that other people’s perspectives are important to consider. I have no market on wisdom. Thus, I ask my question partly as a philosophical one and partly to gather information about how other people think about the same things I think about. For whatever that is worth.

      As I’ve said elsewhere, legal rules vary a lot state to state. In states where donors are not considered to be legal parents some providers of sperm offer donors who will be identified, at the request of the child, when the child turns 18. As you note, this does address some concerns that have been articulated, but I’m sure it won’t make everyone happy.

      Could you have a system where the donor is a father but is not identified until the child is 18? I don’t think that’s practical, legally. I don’t think a child can have a mystery parent (and here I mean legal parent.) So I think your proposal has to fall on the “donor is not legal father” side of the line.

      That said, I think it is a practial alternative many people do choose as they try to balance their needs and the eventual needs of a child they are hoping to create.

      • Julie you state: I know many men who are terrific fathers. I have no idea if they are genetically related to their kids or not … In fact, I think it insulting to put them in the same category with someone who is (I’ll use someone else’s phrase) nothing more than a casual fornicator. What makes them fathers isn’t the genes. It’s what they do.

        It seems that on this point we really do disagree. It’s evident you will never be able to accept that the man who contributes half the genetic material of a child is is intrinsically the father. You seem to want to deny that biological reality absolutely. To you only a man who gives daily care to a child is a father. By your attributation fathers only came into existence around the mid-70’s.

        Finally, I disagree that providing sperm is the only thing men can do to give life to a child. I don’t think of “giving life” as a narrow and biological act that’s over in a few minutes. A man can commit himself to raising his children in a thousand different ways over the course of a lifetime.

        No, bringing up a child is not giving life to a child. Virtually any capable adult can raise a child but only one man was responsible for giving life to that child. In my view being strictly semantic ONLY the genetic father should be termed the father and adoptive or social fathers should carry the tag. For all that a man can raise another man’s child with love, care and attention. He will never be the father of the child, merely the adoptive or social father of the child. That is not to denigrate the role of a social or adoptive father but merely to give it its real context.

  6. Do the fees of a bunch of fertility lawyers/doctors mean more to you than feelings the DI-adults who are admirably polite here considering that while you publish their comments, the status quo remains fraught.

    Incest remains a problem if donor-anonymity remains the norm.

    • I do think it’s important to remember that ART is really an industry and that, as you suggest, a lot of people make a lot of money off of it. But that fact alone doesn’t lead me to any conclusion. It’s something to be mindful of.

      I don’t imagine anyone has ever successfully surveyed the community of people identified as DI-adults to see what their feelings are. It’s likely impossible to do that in part because ART is so widely unregulated. Presumably there are people walking around who are DI and don’t know it. There are also people who are DI and fine with it. And there are people who are DI and feel strongly about it. But even there, I expect you get a range of strong feelings. So I’m not sure how to take those feelings into account.

      That said, I am concerned with the well-being of children generally and have tried to integrate those concerns into my discussion.

    • Angela, You hit the nail on the head – possible incest is a big problem – but the way the law has dealt with it is to legalize incest between genetic first degree relatives who are donor related. Almost all states with laws regarding donor conception state that the donor is not to be treated as the natural father of offspring. This makes both the donor and half-siblings unrelated by law. I know of one donor-offspring sexual relationship, and several half-sibling sexual relationships and even cohabitation. Any of those couples are free to marry in many states. Because of the phenomenon of sexual genetic attraction (yes, first degree relatives have amazing innate attraction for each other) sexual relationships are inevitably occurring between donors and offspring and half-siblings as they get to meet each other. BTW genetic sexual attraction is also a big issue occurring between adopted people and birth parents but with them it is illegal to have intercourse whereas between donors and their donated offspring it is legal.

      In my mind another reason to ban donating gametes.

  7. Sorry but I asked about incest and have no clear answer, in fact your last reply dosn’t even contain the word. When it comes to access to honest accurate birth certificates/access to roots, one rule for adoptees/DI-individuals and one rule for everybody else gives a raw and dangerous deal with incest currently enshrined in law.

    • Sorry, I got sidetracked in responding to the first part of your earlier post.

      Yes, I see the potential incest problem you refer to. I don’t know how big a possiblity it is, and I’ve actually read different things about the degree to which there is a real danger arising from what might be considered in-breeding. (I guess you get the same problem with closed adoption where people might know they are genetically related.)

      One way to address that problem would be (as you suggest) to encourage or even require identifiable donors. I’m not sure I’d go as far as requiring it, but I see the virtue of encouraging it. That might actually address a number of the concerns that have been raised.

      As I’ve said before, I think you’re far more likely to get people to use identifiable donors if it is clear and explicit that the donor is not a parent. That’s pretty much where this post started.

  8. Why won’t you “go so far as to require it” as you put it?

    • Partly because I’m not exactly sure what the “it” is, and partly because I wonder how the requirement would play out in real life.

      There are many ways to manage identification of donors. I’d be most receptive to a system where donors had to agree that when the child turned eighteen the child could, at her or his election, get the contact information. Perhaps 18 is not the right age–I’m not sure about that .

      Would you consider that satisfactory? Realistically it ought to take care of the incest problem and it would give people a chance to find their genetic origins if they wanted to. There is also some experience to draw on with this as lots of sperm banks do offer this sort of donor.

  9. The “it” is incest. Eighteen for checking out origins is okay-ish, and I say okay-ish,instead of okay, because setting the age at eighteen doesn’t allow for DI-adults below the age of eighteen to fall in love and get pregnant.

    But anyway, why is there one rule for some and one for another regarding honest accurate birth certificates/access to roots, and one rule for others ?

    • I’m afraid I was confusing.

      I had said:

      “One way to address that problem would be (as you suggest) to encourage or even require identifiable donors. I’m not sure I’d go as far as requiring it, but I see the virtue of encouraging it”

      The “it” there didn’t refer to incest but instead referred to requiring identifable donors. All I meant to suggest in my later comment is that there are a number of ways of getting to that end and so whether I’d require (as opposed to encourage) “it” might depend on which way you chose. Am I making things any clearer?

      I’m not sure I understand your final question–about one rule for some and one for another. What are the two rules you refer to?

      I just wrote a bit about birth certificates in response to a comment by Bill Cordray on another post. Perhaps that addresses some of your concerns, but I’m not sure?

  10. I am objecting to the fact that there is one rule for the donor-conceived and one rule for those who are not donor-conceived.

    If the donor-conceived don’t have accurate honest birth certificates/access to their roots -like most everybody else – then incest is enshrined in law.

    • The whole birth certificate question is actually complicated. I wrote some other comments about that attached to this post. https://julieshapiro.wordpress.com/2009/09/22/the-wrong-embryo-ii-an-afterthought/

      Whether a particular birth certificate is seen as honest depends on what a birth certificate is said to show. So, for example, if a birth certificate is supposed to show who the legal parents of a child are (which is apparently what the US State Department thinks it is supposed to show), then an adopted child’s birth certificate should show the names of the adoptive parents. What names belong on the birth certificate in the Savage/Morell case probably depends on what state the child is born in.

      If instead it is supposed to show who actually gave birth, which is certainly one way of thinking about it, then it should show only the name of the woman who gave birth (which in this case would be Carolyn Savage).

      If it is supposed to show the source of the genetic material used to create the child, then it should show the names of those two people.

      Perhaps if we issued “certificates of legal parentage” then we’d just have to debate what constituted legal parentage–which is obviously a substantial debate. But it would spare us having to also get entangled with birth certificates.

  11. PS the rules are I refer to the ones that fertility doctors/lawyers currently make.

    Incest remains a problem.

  12. It’s not complicated. Honest accurate birth certificates. With the “genetic material” as you put it written up on it.

    Otherwise you are setting up incest in law.

  13. NB I note with some amusement that you say on that other part of your site that having the real names would create as you put it “havoc” but it wouln’t create havoc for the donor-conceived. Far from it, because incest is illegal But anyway, I’m staying here on this part of your website.

    You want to enshrine incest enshrined in law. Or an I mistaken?

    • I’m not going to carry on this bit of the conversation that much further because I fear we are reaching a point of diminishing returns.
      I do not want to “enshrine incest in law.” I think there are a variety of ways of dealing with that problem and even dealing with issues of donor identification short of putting the donor’s name on the birth certificate.

      I’m not indifferent to the issues that have been raised here and there’s been quite a lot of give and take much of which has seemed productive to me. I know that we disagree about what makes a person a real parent. I think we just have to agree to disagree for now.

  14. What makes you the referee anyway?

  15. A variety of ways of preventing incest you say like what?

    If you don’t want to enshrine incest in law like you say you don’t, then this gross peice of law-making that you are involved in needs some fair groundrules. No Di-adult anywhere on your site has agreed with anything you say. This leads back to my original posting here, which was a request for honest and accurate birth certuificates and one rule for all. You’re not being a fair referee yet because of this.

    The give and take that seems “productive” to you as you put it confuses me because you write that “you don’t want to carry on this bit of the conversation much longer.”

    By chance, I have used the same adjective as Bill Cordray over birth certificates on the part of the blog you showed me – honest is the adjective.

    Incest enshrined in law remains a problem, there is no fertility law that could possibly be legal after that.

  16. I find the above discussion about biological and social parenthood both interesting and important.

    Obviously, it is difficult to separate biology and social interaction in humans, because they are cultural “animals”. However, some times biology shows its face. I can think of two instances:

    When a single women (or a couple) want several children they go to great lengths to insure that they can get sperm from the same donor. They also explain why: that the children will be full siblings and therefore more connected to each other. Women who choose sperm donation, rather than adoption, have an urge for biological connection, but they are aware that their children share the urge.

    When a step family breaks up it is rare that the stepparent keep in contact with the stepchild. This fact is not spoken much about and it is heartbreaking (I have experienced it myself, as a child). It is not just a question of legal rights. People clearly find biological connections to be permanent, but social connections to depend on circumstances.

    The question: “is a biological father important?” is meaningless unless you add “to whom?” If it is important to the child, it as futile to deny this fact as it is to deny love. Donor children are starting to speak out, and lo-and-behold, they are saying the same as their mothers: biology matters.

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