Sometimes I think I’ve seen every variation possible, that there is nothing new to say, nothing new to comment on. But then along comes a case that isn’t like any I’ve seen before. And that’s true today.
From some point in 2007 to early 2008 Christine Adams-Hall and Robert Adams were in a romantic and sexual relationship. They were not married and they did not live together. The court notes that Ms. Adams-Hall was 40, Mr. Adams 25. It’s not that I think that is a critical detail, but apparently the court thought it important enough to pass it along to us.
In November, 2007 (during their relationship) Adams-Hall told Adams she was pregnant. She said she had cystic fibrosis and that she needed a semen sample in order to ascertain whether he, too, was a carrier. He provided one. In February, 2008 (after they’d ended their sexual relationship) she told him she needed a second sample as the first one was contaminated with blood.
Now in fact, Adams-Hall was not pregnant when she told Adams she was. What she really needed the sperm samples for was insemination in order to become pregnant. The February insemination was successful and Adams-Hall became pregnant. The baby was born November, 2008.
Adams did not wish to be considered a legal parent to this child and filed a petition for determination of parentage soon after it was born. Genetic testing revealed that Hall was the source of the sperm used for the creation of this child. It was also clear, however, that he had not consented to the use of his sperm for insemination.
Fortunately for Adams, Delaware law is fairly clear on this. The Delaware Supreme Court confirmed that a man who intends to be a parent of a child conceived via assisted insemination is only a legal father of the child if he agrees, in writing, that this is his intention. Since Adams did not consent in writing, he’s not a legal father. Notably, the existence or non-existence of the genetic linkage is irrelevant. What matters, according the statute, is the written consent.
Adams-Hall’s contended that the sexual relationship between the parties extended through February, 2008. This is a question of fact and, as it turns out, a critical one. Suppose Adams-Hall and Adams continued their sexual relationship through the month when the child was conceived. While conception via assisted insemination would be a possibility, it would also be possible that conception occurred via sexual intercourse. If the latter was the method of conception, then Hall would most assuredly be the legal father of the resulting child. Thus, his status as a legal parent would depend on the resolution of a factual question about how exactly this child was conceived.
This is another iteration of a problem I noted a long time ago. Frankly, it’s bizarre to me that Adams’ parental status should turn on the precise manner a specific sperm reached the egg. This case turns out to be easy simply because given the court’s factual findings about the relationship between the parties, there’s no possibility conception occurred via intercourse. But more generally, if you have one set of tests for assisted insemination and another and different set of tests for insemination that occurs via intercourse, there will be a discontinuity where they meet. I think that is what we are glimpsing here.
I’m not suggesting that the Delaware courts got this one wrong. Under the circumstances, I don’t see why Adams should be found to be a legal parent. (I imagine those of you attached to a genetic test would differ on this?) But more critically, why would one reach a different result if Adams and Adams-Hall had engaged in intercourse in February?
Perhaps here is a point of agreement between the advocates of a genetic test and me–the result should be the same no matter how conception occured. And I’d say both answers should be, as the court’s answer was here, that Adams is not a father. I assume the supporters of DNA would say that he is?
Over a year ago I noted that Delaware had adopted a new law that recognized de facto parentage.