Sperm Donors, Egg Donors or Gamete Donors?

Recently there has been a lot of conversation on the blog about anonymous donors.   Sometimes it’s clear that people have meant to use the term inclusively, to cover both egg donors and sperm donors.   But sometimes it seems to have been more specifically about sperm donors, as when sperm donors were compared with “deadbeat dads.”  

It seems to me that in some respects whatever concerns there are about anonymous donors should be the same for sperm donors and egg donors.   In essence, they donate the same thing–genetic material necessary to create a child.   To the extent it seems like a problem, in both cases a child might not be able to trace back his or her genetic lineage.     

Despite this similarity, the conversation tended to focus fairly specifically on sperm donors from time to time, while it never migrated specifically to egg donors.  

I  think it likely the conversation drifted to a focus on sperm donors because sperm donation is much more common and has a much longer history than egg donation.  There are many more children of sperm donors out there than of egg donors, and many more of them are old enough to offer their views.    To the extent people view reality through the lens of their own experiences, it makes sense that the conversation might be about sperm donors.   But I suspect virtually all of the comments would apply equally to egg donors. 

At the same time, I think it is important to be attentive to gender here.   Men and women are differentially situated when it comes to reproduction and child-bearing.   So, for example, it seems to me reasonable to compare a sperm donor to a man who engages in a one-night-stand, at least for purposes of discussion.  (I’m not saying here that you’d necessarily treat them the same, but I think it is fair to compare them.)    In both instances you end up with a child who has no contact with the man who provided the sperm that created the embryo. 

By contrast, I don’t think you can reasonably compare an egg donor to a man who engages in a one-night stand.   An egg donor is doing something that doesn’t really have any historical analog.  Only recently has technology allowed us to separate the production of an egg from pregnancy/birth and created the role of egg donor.    Apart from instances where egg donation is used, there are no children walking around who have lost contact with the woman who provided the egg (but was not pregnant).    

Further, the process of sperm donation and the process of egg donation are obviously different.    Egg donors undergo a course of drug therapy to encourage super-ovulation and then their eggs are “harvested” through a moderately invasive procedure.   Nothing like this happens to sperm donors.   Given this difference I would expect that sperm donors are far more likely to decide to become donors relatively casually, while egg donors are more likely to consider their choices more carefully.   I’m not sure what follows from this difference, but it seems to me noteworthy, at least for the moment. 

Finally, sperm donors are men and egg donors are women.   That’s obvious, of course, but it might be important to consider it anyway.   Our image of a mother is different from that of a father.   Thus, it’s one thing to say that a sperm donor is a father, but it is another thing to say that an egg donor is a mother.  A sperm donor has potentially fulfilled the essence of a father’s role in creation of a child.  An egg donor has only fulfilled on of two roles–the second being pregnancy. 

I offer no grand conclusion here.  I’m not ready to do that yet.  But I think it is worth thinking about how gender might complicate our picture here.

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13 responses to “Sperm Donors, Egg Donors or Gamete Donors?

  1. You say very wisely that: But I think it is worth thinking about how gender might complicate our picture here

    Gender certainly complicates the picture both biologically and socially.

    There used to be no doubt about who the biological mother was, while the identity of the father could be questioned. With modern technology the situation has been reversed. Now, the father can be determined with complete accuracy, while there are three different kinds of biological mothers: the mother who contributed the recombining DNA, the mother who contributed the mitochondrial DNA and the mother who carried the child to term.

    A viable society has to regulate responsibility by law. It used to be simple, but no longer. We are in a mess. We accept “sperm donors” to service “alpha females” (by the way, the Romans used gladiators for that purpose already 2000 years ago), but at the same time we insist on the importance of fathers for the children of less fortunate females because the welfare state is running out of money. In Britain it confused a lot of people, that the legislation doing away with the need for a father figure in sperm donation, and the legislation which criminalizes mothers who don’t report who the father of their child is, were enacted within a relatively short period of time. People had barely got used to the idea that fathers were redundant, before they were told that they were actually indispensible.

    • The law has not even begun to grapple with the potential issues around mitochondiral DNA. I wonder what that will bring.

      It’s very hard to work through the biological differences and figure out the social or legal meanings we should assign to them. Once one decides that contributing sperm makes a man a father it seems easy to say that that contributing an egg is what makes a woman a mother. This has an appeal of treated the two sexes the same, and thus avoiding gendered discrimination. Yet as your comment points out, there are other possible choices for “mother” that do not exist for “father.” So perhaps we ought not to simply treat them the same.

      The problem you identify–with the competing messages of law–seems to me to arise from a lack of clarity about the underlying values/choices being made. Particularly in the US, we tend to make law bit by bit, and often the bits don’t fit together. terribly well.

  2. I agree that the status of genetic mother and genetic father are not interchangeable in the context of donation. The fact that a sperm donor performs the identical function of a legal father in delivering sperm in my view makes him wholly the father. The fact that he does not make a woman orgasm whilst delivering the sperm appears to me to be irrelevant in the extreme. However, an egg donor is only performing half the function of the mother’s role so I regard her as not qualifying as the mother – to me the gestational mother would have that role. I know this is sexist but reproduction is all about sex to put it crudely!

    • I just finished writing a reply to Nelly and now I see you’d already made the same point as I did.

      Reproduction does seem to be one place where it is awfully hard to pretend the differences between the sexes don’t matter. It seems peculiar to pretend men and women are similarly situated at that point. But I think the general differences between men and women as parents become less and less important as a child ages. So I’m trying to put together a picture that takes account of gender in some ways but doesn’t then run that difference through the entire life of a child. Challenging to say the least.

  3. The egg donor should really be termed a biological father (as she provides genetic material but does not gestate etc), but since the term father is so gendered, we shall have to use the term GENETIC MOTHER. mother and biological mother is not appropriate here.

    The role of the gestational mother, to me, is more complex.

    • I’ve always suggested to my students in family law that the egg donor is akin to a father. It’s an interesting idea–gets good conversation started. I’ve come to think, though, that it isn’t entirely fair to many of the fathers I know. For them, and for me, to be a father is to be a male parent and to be a parent is to do a whole lot more than just deliver some genetic material.

      Now of course, this is where I disagree with a lot of commenters who do think that’s all it takes to be a father. And if you take that view than I think that the egg donor pretty much has to be the same as the sperm donor and both have to be parents. And then what, indeed, do you do about the woman who is pregnant and gives birth? (Who you call the gestational mother). I insist that she get some credit for her contribution, though again, others disagree.

  4. I’d like to pick up the point of Sandy and Kisarita. In fact, the same configuration and legal sequelae were also discussed in the Jewish Halacha. With respect to the sperm donor, Halacha agrees that the donor is the father. With respect to the maternal side, it is however more complicated, because both the egg donor and gestational mother fulfill a part of the maternal criteria. For example, if either the egg donor mother or gestational mother is Jewish, the baby is Jewish. However, the modus of the baby being Jewish is different – in the first case it is due to the genetic bond, in the second, through the acquisition at child birth. So if the baby is Jewish and the gestational mother is Jewish, she’s also the legal mother.

    • Interesting, and thanks for posting that. Under Halachic law are both the egg donor and the gestational mother recognized as mothers? Or is there some way of prioritizing one claim over the other?

  5. If Jewish, the gestational mother has the halachic priority. Interestingly, there is a long going midrashic (nonhalachic) discussion, for example in Targum Yonathan.
    http://www.ou.org/torah/tt/5770/vayeira70/print.htm
    Basically, it was argued that Josef was genetically from Lea, Dina was from Rachel. But both were exchanged as embryos, on behalf of Lea’s prayer, so that her sister should have the standing as the mother of 2 sons. Obviously, Josef is considered Rachel’s son and Dina Lea’s daughter.

    Of course, the egg donor mother can take over and bring up her genetic child. Which is of course exactly what happens, if the genetic mother is using a gestational surrogate, and the egg was fertilized with her husband’s sperm. But in that case, the genetic mother doesn’t have the halachic status of the “mother”, but simply that of an adult who is bringing up a child.

    • Wow. I had no idea. Is it clear, then, that the genetically related woman can oust the one who gives birth if she chooses to do so? Or is this the result only if there is an agreement between the two women? My quite limited knowledge of Halachic law would lead me to expect some disagreement about this among scholars, just because a variety of interpretations seems to me pretty common.

  6. Halachic law always has the “dina demalchuta dina” clause. So whatever is the law of the land, would apply to the situation. (Unless the law of the land supports murder, idolatry or sexual immorality – but none of the 3 disqualifications seem to be there in the current case).

    So if there was a binding legal contract between gestational surrogate and genetic mother, the gestational surrogate would need to yield.

    So basically, the genetic mother would have the contractual upper hand, and the the gestational surrogate have the halachic upper hand (if she were Jewish), but the gestational surrogate would need to yield – I would guess – because the law of the land. Still, it would make a very interesting case, if both the gestational surrogate and the genetic mother were frum.

    On the other hand, the egg donor would not have either law of the land, or halachic grounds.
    So she wouldn’t be able to go to the birth mother and say – give me my baby back – because the birth mother has acquired it through gestation and birth.

  7. The Halacha isn’t quite a settled matter just yet, as the question is still quite new. I suppose to most authorative word on the subject would be the chief Rabbinate of Israel, but I’m not sure how they have ruled on the issue.

    Halacha’s acceptance of Dina D’malchuta is limited with regard to contractual law. If both parties are Jewish, they are encouraged to seek mediation or arbitration with a halachic authority instead of filing with secular court. Also in matters of personal identity I doubt halacha accepts Dina Dmalchuta.

    However, the halacha’s preference for the gestational mother to me is suspect- did the Rabbis of the Talmud know that the mother provides half of the genetic material just as the father does?

  8. The problem with CRI is that the Office of the Chief Rabbi is not considered the most influential posek amongst the Ashkenasi community. Amongst the Litvish, it’s more people like R Elyashiv. After people like R Moshe Feinstein have passed away. The situation is different with the Sphardi community where the chief posek – R Ovadia Yosef – is also the former Sphardi Chief Rabbi. Tendentially, the Sphardi rabbis are more lenient with respect to family law.

    Anyway, you are right with the limits of Dina D’malchuta with regards to contractual law, but one would need to start somewhere. The point is the only thing going for the genetic mother who subcontracts the gestational surrogate IS the law of the land.

    You can do a search on the impact of genetic material on halachic decisions – but my impression is it is not overwhelming. There was a case recently where a married mother wanted to establish paternity of someone who was not her husband based on DNA evidence. That would have made her child a mamzer – she wasn’t permitted to present the DNA evidence before Israeli family court.

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