New Delaware Case–Unwitting Sperm Donor is Not a Father

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.

Adams-Hall v. Adams is a new case from the Delaware Supreme Court.   Thanks are due to Professor Nancy Polikoff who pointed me towards it and blogged about it herself.   

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.

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59 responses to “New Delaware Case–Unwitting Sperm Donor is Not a Father

  1. This is a ridiculous ruling. The DNA is his, no matter how it got there, consent or no consent.
    This human hubris is scary- to think that we can define biological relationships merely by whether we consent to them or not!

    The guy should be acknowledged as the legal father, but the woman should be charged with fraud.

    Is there a procedure for him to legally be relieved from his parental duties? If there is, he has that option, but he should have to go through the same procedure as anyone else.

    • No one is denying the biological relationship. The question is what legal meaning the biological relationship has. I know you don’t agree with this, but there isn’t any real reason the law has to follow biology. (We’ve discussed this before and I will very likely come back to it shortly as a main topic.) Of course, if you don’t use biology, you have to use something else to decide parental status. Or some combination of things.

      I’ll readily agree that that, assuming the facts as stated, the woman acted wrongly. Perhaps sanctions of some sort are appropriate, as you suggest. And I think you and I may also agree that the question of sanctions should be separated from the question of parentage? I don’t think we should decide who is or is not a legal parent in order to punish some adult for behaving badly.

    • Completely agree Kisarita. It seems like a complete double-standard. It’s his child, but he gets to use a “free pass” card.

      • I don’t see the double-standard. He is genetically related to the child. The question is whether that fact all by itself is enough to create a legal relationship to the child. And the answer this court gives is “no.”

        I suppose the double-standard question might be this–if he had wanted to be parent to the child, would he have a right to claim legal status? (Here he didn’t want it.) Even there I’m not sure it’s exactly a double standard. It’s more like a one-way street?

        Where do you see a double-standard?

  2. Clearly the Delaware Court got it right. A father should always be allowed to opt in or out of a relationship with a child, after all that has always been the male prerogative. However, the logical conclusion of denying the need for fathers for some children (depending upon how conceived) will obviously be to eventually deny the need for all children. Since men are increasingly anyway already regarded as totally optional in the family unit, and fathers are now legally surplus to requirement for many kids, the next reasonable step in a world facing ecological disaster, will logically be to cull most male humans. Since very few sperm donors are needed to fertilize all the world’s women, males are clearly seeming increasingly redundant.

    • Yes a few vials of sperm from the best looking best educated men is enough to create hundreds or thousands of children for all the women who don’t want fathers around for their kids. The grandchildren and great grandchildren (which will also be their great-grand-neices and nephews) of those women might be a bit daft and not quite so pretty. I think I hear that “Dueling Banjos” theme from “Deliverence” playing.

      • I don’t really follow you down this hypothetical road, but if I did, I’d say that in that brave new world universal genetic testing would avoid any dueling banjo problems.

        • Their needs to be a big DNA data base so that
          Each child can be confirmed to be the offspring of the people claiming to be its parents before the state cirtifies the childs birth record.

          The child should not be sent home with a couple unless one of them is actually related to the child maternally or paternally. The one who is not related would not be listed as a parent on the child’s birth records. If that person was a spouse they’d be a step parent otherwise a legal stranger.

          Then the state should make the one known parent explain where the other unknown parent is – did they use a donated egg or donated sperm? If so from what clinic? What donor number? What is the donors DNA number so we can confirm that this is that donors child and prohibit clinics from using that person’s dna if that person exceeds a certain number of offspring. If the child’s DNA does not match the donor number the mother chose then the child’s dna should be run against all the donors that clinc has and all the patients until the father is identified. If all people had a DNA id then the exact identity of the childs parents and siblings could be determined and anonymity would be impossible. Then anyone who did not want their children would have to give up their children in a court of law properly.

          • This is ludicrous! Not only is it violating a gazillion privacy issues, it also is none of the hospital’s business. And like I mentioned before, there are many instances where there would be surrogates, or women going through fertility treatments who are carrying (and delivering) donated embryos. It’s no one’s business who’s “related” and who isn’t. If the father wants to know, it’s his decision, not the hospital’s. If couples were going through donor treatments, it could be their decision to test, during or after birth. But it should never be the job of the hospital to require that. Besides, what about home births, or births in taxi cabs on the way to the hospital. Are you going to require the government to DNA test every child born everywhere?

          • Besides, your suggestions are with the goal that anonymity be eliminated. What if a woman delivers a baby born from rape, or an abusive boyfriend? You’re suggesting that this child be labeled as such and the abuser have knowledge and rights of this child? That’s crazy and DANGEROUS on many levels. Again, it’s a private issue. And speaking from a psychological standpoint, many mental health doctors would advise not telling children the truth if they are a product of a vicious crime such as rape. Your suggestion would not only tell them, but also let them know where the rapist is.

            • Identifying the person as the father is just a fact. You don’t have to conceal the fact to block a dangerous person from custody or visitation. If the parent is dangerous the court will protect the mother and child, they don’t have to pretend he does not exist – legal fiction.

              • That’s very naive thinking. The court doesn’t “protect” anyone. The best protection is if the abusive person doesn’t even know you exist or where you are. How do you think the court is going to protect a mother and child. The mother was already raped (most probably by a repeat offender who was recently paroled due to prison crowding). Is the court going to protect her the same way it protects all those women who are killed by their estranged husbands and boyfriends, who already had restraining orders against these men? What you are suggesting is naive, doesn’t make much sense, and is a total violation of privacy. What if the woman was impregnated through incest? It goes on and on. The number one cause of death for pregnant women is homicide. In this country, it’s very dangerous to be pregnant. They are murdered by the men who have impregnated them because they don’t want the baby. Your suggestion would open the door for more such homicides, or murders once the baby is born and the “father” is IDed.

              • This is the nub of our disagreement–fatherhood is not a fact. Genetic relationship is a fact. The meaning given to genetic relationships–whether it be the social meaning or the legal meaning–is constructed by the society in which the child lives.

                Legal meaning can be ascertained by reading case law and statutes. Social meaning is harder to get at, but usually there’s a common understanding. Both of these can, and often do, take genetic relationship into account. But you’re glossing over a lot of ground when you say “identifying the person as the father is just a fact.”

    • Actually, it has not always been a male prerogative to opt out–the original marital presumption assigned the role of legal father to a woman’s husband and that was that. (Unless he’d been out of the country for a year or something like that.)

      I guess I am one of those who say that children do not have to have fathers. They have to have a parent or two. Men can be terrific parents. But I don’t see that there is a specific need for a male parent for every child.

      Neither do I think this denigrates the role of men as parents. To be a parent is an awesome commitment of time/energy/heart/soul. Men regularly make this commitment and I think we are ready, as a society, to appreciate them for it. (Indeed, sometimes I think men get appreciated for going part-way down the road, but that’s another story.)

      Men have a great deal more to give to children than sperm. Indeed, perhaps the sperm is the least important thing a man can offer a child.

  3. Good for New Delaware. Legal parentage and genetic parentage are not the same thing, though I accept that some people think they should be.

    I find it wrong that someone should be able to obtain someone else’s gametes by deception, either by theft or fraud, in order to create a new person. Imagine if a man were able to steal a woman’s egg, use a surrogate (or become pregnant himself, as is likely to be possible some day), and then impose the responsibilities of legal parenthood on the woman.

    It’s wrong, and both the child and the other genetic parent suffer as a result.

    Just because it’s commonplace (in the case of women saying they’re on the pill when they’re not), doesn’t mean it’s right.

    • I like your hypothetical. I think there is much to be learned from thought-experiments that switch genders. I cannot believe we’d say the woman from whom the egg was stolen was the mother. (Which reminds me that I have an egg-stealing clip to blog on—it’s not so hypothetical.)

  4. Wait a minute. Men can’t have it both ways. It’s nice to say that men should only be responsible when they have consciously made the decision to inseminate, but is the same applied to women? Do women have a choice all the time? No. If a woman is raped, or impregnated by a boyfriend or husband when she doesn’t want to have a child (maybe the man foiled her birth control pills or refused to use a condom), can she opt out of having to pay for the child once the child is born? Of course not. So, why should men be given that right? Biology is used for women. It should be used for men too.

    • Okay, this relates back to the double-standard point, right? I think I see what you mean now–the double-standard is how we treat men vs. how we treat women? “Biology” is a tricky thing when it comes to the man/woman distinctions. As providers of gametes (sperm/egg), men and women are similarly involved with the production of children. But women become pregnant and give birth where men do not. Thus, centuries of law have treated men and women differently.

      I’m not saying this is good or bad at the moment–just that there is an observable difference. That difference could be at play in the circumstance you describe. It’s also worth noting, of course, that the pregnant woman has a right to terminate the pregnancy (at least in theory, for some of the time), while the man whose sperm created the embryo has no such right.

      And then I think I want to quibble a little with the hypo. A woman can give a child up for adoption after the child is born. When she does that, her rights are terminated as are her obligations to pay.

      Now all that said, I still think it is good to think about the double-standard problem. But I think the hypothetical that raises that question is the one offered by Mark Lyndon, above.

  5. Delaware got this wrong. To make the point, let’s say that this were switched around. If the man was suing the woman for parental rights, he would 100% receive it because the child is his. Biology wins. The woman’s argument of “he didn’t consent, he didn’t even want a child, I did it without his knowledge, and we weren’t in a relationship at the time” wouldn’t fly an inch. The man would get parental rights. So, if the law acknowledges that he has parental rights to the child, the outcome should be the same regardless of whether he wants those rights or not. Parental rights are not determined based on the parent’s desire to have them or not. They are based on biology (or adoption, etc). His DESIRE for wanting the rights shouldn’t be the determining factor. There are many men out there who have no desire to have parental rights, but they still have to pay child support because they are genetically linked to the child.

    • I don’t think that it is clear that the man would win if he wanted to claim parental rights. (I don’t know quite enough about Delaware law.) Some states have statutes that say that if pregnancy is not the result of intercourse, the man is deemed to be a donor and a donor is not a father. (This is part of the current Uniform Parentage Act.)

      It’s interesting to think, though, about the broader point you raise here–that parental rights are not determined based on the parent’s desire to have them or not. That’s not actually the case in at least one situation I’ve written about. If a married woman gives birth to a child her spouse (and here for the moment I’m going to assume her husband) is presumed to be the father of the child. He can, if he chooses, accept that. He can also decide he’d like genetic testing and, if the testing shows the absence of a genetic relationship, he can use the results to rebut the presumption. In other words, he can be a parent if he wants to, but he can also decline to be a parent. It does depend on what he wants.

      To be more complete, even if he wants to be a parent, his wife might be able to move him out of that role if she cooperates with the man who is genetically related to the child. But here too, it is about the folk who are married having options. If the spouses decide togetether that they’d like to be the parents, they can defeat all comers. If they do not want to be the parents, the husband at least does not have to be.

      This doesn’t speak to your question of whether it should be that way. But in most places it is that way.

  6. Just out of curiosity, are their last names the same out of coincidence? The article said that they were not married.

    Which brings up another point….would it make a difference if they were married during these events? If they both admitted that they were married, but not sexually involved, would that result in the same judicial outcome? He still didn’t “consent in writing” to the insemination. I doubt it. He’d have legal parental rights.

    And what about regular couples out there? I’m sure there are other cases out there where the woman inseminated herself with her boyfriend’s (or husband’s) sperm without his knowledge or “written consent”. Can the men in those cases get out of their legal parental obligations too? Then, can the reverse happen? Can women sue for full legal parental rights if the man’s sperm was used without his “written consent”? It seems to me that if you’re going to have a law or a judgment, it better makes sense both ways, or risk being considered a double-standard, and thus, setting a bad precedent for future cases. Either biology DOES equate parental rights, or it doesn’t.

    • More excellent questions. The little one first: She changed her name to match his, but I don’t recall when.

      If they were married, he would be presumed to be the father and given that the DNA would match, that would be that. If the sperm used were that of another man, you might have a consent issue. But I don’t think the statutes contemplate insemination using the husband’s own sperm without his consent. Perhaps this is just not something they thought of.

      As for the more general questions, apart from the cases where the couple is married I think the law varies place to place. In general, in the absence of ART and/or marriage, biology supports parenthood for the man and we do not think much about intent. One of the main discontinuities that plagues family law is that between conception via ART and conception via intercourse. There are basically two sets of rules. And so when you get a case like this one–which is in that area of discontinuity–all sorts of odd results can be generated.

  7. Why did he agree to provide a semen sample anyway? Surely a blood sample or even a cheek swap would have been enough to test for cystic fibrosis?

    • Because he’s 25 and stupid.

    • I believe she argued that he was foolish to fall for her story about CF and that this somehow should figure into the court’s determination of what to do. I suppose that is some sort of assumption of the risk sort of theory. The court did not buy it and I’m inclined to think that they were right to reject it. If she was set on misleading him, the fact that she succeeded should not count against him.

  8. Its starting to sound might suspicious to me. A semen sample indeed. I don’t know if I believe him actually come to think of it.
    I’ve given this some more thought. Lets say a guy could prove that a trick he picked up at the bar one night stole semen from him out of a used condom then inseminated herself without his consent and later gave birth to their offspring. He’s ordered to pay support based on a Positive DNA test. Lets say he could prove she violated his rights and stole his semen because he had secretly videotaped himself having sex with her.

    I think none of that really matters. The fact is that he is the father now that his child is here the child is a member of his family and he has an obligation to support. I think he should sue the girl for damages to the tune of 18 years of support payments in advance, she’d loose have her wages garnished to cover his support payments.

    I’m just tossing around ideas, anything but “he’s not the father”

    • There actually is a case rather similar to this. I don’t think there is a reported opinion but I recall it from news stories.

      A man and a woman had oral sex. She saved the sperm and later used it for insemination. She conceived a child and claimed child support from him. This was in Illinois. He was deemed to be the father by virtue of genetic testing. He then sued her for (and here my memory is fuzzy) something like intentional infliction of emotional distress. I don’t recall what happened to that claim, but it seems to me it’s a reasonable one. Assuming the facts are as stated, she clearly did him a harm. It’s a little hard to think about how to measure this harm, though. Perhaps the measure of the harm is the child support he would owe plus something for the related emotional harm?

  9. I’m wondering if the way we’re looking at this is a male-female thing. At least four times now, I’ve heard about someone getting pregnant by telling their boyfriend they were on the pill when they weren’t, or when they just stopped taking it without telling him. Each time the almost unanimous reaction from men was that this was dreadful behaviour, and sympathy for the man’s predicament (one seemed to come close to a nervous breakdown, whereas another got married, and now has not one, but three children with the woman in question). The reaction from women seemed to range from “what’s done is done” and no sympathy for the man, to outright blame. I learnt the expression “you shouldn’t go jumping in puddles without any wellies”. (wellies=gumboots=condoms)

    It’s a lot easier for women to control whether or not their gametes become children, than it is for men, but I’m going to try to reverse the gender bias again. Let’s say you were undergoing fertility treatment, and you had some eggs stored at a clinic. One of the staff implants your eggs into the wrong woman, either by accident or intentionally, and a DNA test reveals the mix-up when the baby is three months old. What if a court were to say to you that none of what went on at the clinic really matters? The fact is that you are the mother now, that your child is here, the child is a member of your family and you have an obligation to support it.

    Suppose another woman’s eggs were implanted into you by mistake, and you give birth to twins. Should the other woman have visitation rights, or even custody rights? Who would be financially liable? Should custody and visitation rights be linked to support payments?

    These mix-ups do happen. Not often, but often enough that I’m no longer surprised when it’s in the news. It’s usually only noticed when the children are very different from the assumed parents, but I suspect there are other cases which either go unnoticed or unreported because the children don’t look dissimilar to the parents.

    Imagine a world where it was possible for a man to steal an egg from a woman’s discarded tampon (just as women can taken sperm from a used condom), and then get pregnant himself. If a man became pregnant this way using your egg, what would be your rights and obligations?

    • ML66UK….I have also heard of cases of wrong embryos or eggs being implanted into women. If it were to happen to me (my eggs given to someone else, without my knowledge), I would feel that that child is my child and I would expect to have parental rights. I believe in medical cases such as that (or even switched at birth scenarios), it always goes back to genetics. (There was recently even a fictional TV show with this sort of storyline.) The parents who the child is linked to through DNA get parental rights. It seems pretty straight-forward to me.

      • It seems far from straightforward to me. Would you accept financial responsibility even if you didn’t get full custody? (men almost never get primary custody, but this could be the gestational mother and genetic father against you the genetic mother). If it was the other way round, and someone else’s egg was implanted into you by mistake, would you be prepared to deliver it to term, and hand it over?

        What if an egg donor were to seek parental rights of her genetic children, or if a sperm donor was able to track down his offspring, and demand visitation?

        If you had an identical twin, then you would both have the same genes. Would that mean you would have parental rights and responsibilities to her children, and she to yours?

        It’s certainly not all about genetics in the UK. Under the HFEA Act 1990, the woman that carries the child is the legal mother, regardless of genetics, and I believe that if she’s married, then her husband is the legal father, regardless of genetics (even if she just slept with someone else).

        Some actual cases that we know about. There must be many more that were never uncovered or never publicised:

        1) Cardiff 2007: a wrongly-implanted embryo was “destroyed”. The genetic parents only found out some time later.
        2) Ohio 2009: Carolyn Savage was pregnant with another couple’s embryo, and handed the baby over to its genetic parents the day it was born.
        3) New York 1999, Donna Fasano gave birth to twins, one of which was not genetically hers due to a clinic clinic mix-up. She would initially not even reveal to the genetic parents that one of the twins was black, but was eventually ordered to hand over the child, and denied visitation rights.
        4) UK 2002, a white woman gave birth to black twins after a clinic mix-up of either sperm or embryos. Outcome unknown, but the mother would have been legally entitled to full custody.
        5) Holland 1993, after eight years of IVF treatment, Wilma Stuart gave birth to one black twin, and one white twin. Her husband’s sperm had been mixed with a black man’s sperm, but she kept both the children.

        • I personally would take financial responsibility if it were my biological child. In many cases, if the child is born into a 2 parent family, child support is not demanded from the other (genetic) parent if the genetic parent decides to give up his/her rights voluntarily.

          If another woman’s embryo was implanted into me by mistake, I would think that I would have to hand the baby over after the birth. It would be hard to do, but rightfully, that baby is not mine. It would be no different than being an unwilling surrogate at that point, and besides, you’re not linked genetically to the baby at all.

          Regardless of the outcomes though, my main point is that it shouldn’t be a double-standard. Consistency is the key.

        • “Would you accept financial responsibility even if you didn’t get full custody? ” I’d expect partial custody unless I was abusive and had my rights taken away then I’d expect to pay with supervised visitation.

          “but this could be the gestational mother and genetic father against you the genetic mother…” If I conceived a baby with her husband it would be our baby, not hers. I’d want 50% custody of my child even if I’d never met the man and our baby’s conception was a lab error. I’d be the mother and the GESTATIONAL CARRIER would be our child’s step mother. Too bad for her.

          “If it was the other way round, and someone else’s egg was implanted into you by mistake, would you be prepared to deliver it to term, and hand it over?” I’d probably abort if the mistake were caught early, its my body and I could decide not to carry another woman’s child to term. If DNA testing at birth proved the child I carried was not mine yes of course I’d give the baby to its parents I’m not a kidnapper. I would not be the baby’s mother. If I found out when she was 12 or 15 I’d of course make some play at shared custody or visitation but the child would have to be returned to her own family and if she did not want to go I would mandate weekly visitation until she got use to being a member of her own family as well as a member of the family conceptually in the house I raised her in.

          “What if an egg donor were to seek parental rights of her genetic children, or if a sperm donor was able to track down his offspring, and demand visitation?”I help those people track down their children all the time, I reunite families separated by adoption, ART, etc. I have only helped two people track down their children while the children were still minors. One was as security guard at my office building and he is now paying support payments and has visitation of his two teenage daughters. The mom was pissed off. The girls were happy. I ran a background check on him first. He was fine. The other instance was mother looking for a 16 year old the adopters were upset but the kid was happy.
          I don’t have a lot of sympathy for people that pretend to be related to kids created thru ART. I think they are lying and the sooner the kid finds out the better.

    • But this happens all the time! Their are societies all over the world where women do not have the right or ability to choose not to get pregnant. This happens even in the good ole USA.
      We may and should advocate for these women’s rights by supporting their access to birth control, autonomy over their sexuality and such. But no one suggests anywhere that once the children are here, she is not their mother.

      • I would suggest that she is not their mother if the baby she’s pregnant with wasnt conceived with her own egg. Being pregnant and giving birth is not the reason a woman is a mother its evidence of the reason she is a mother – evidence that she reproduced. But its not evidence anymore. I look at women in their late 40’s having babies and its like lady who do you think your fooling your not that kids mother, those women seem so spoiled to me. I hope the real mothers of those babies go looking for them some day. A woman can “mother the verb” someone elses child but it does not make her “a mother” and it certainly doesnt make her “their mother” even if the kids don’t know any better its just a big old lie.

        • What??? Many women go through fertility treatments and have to resort to using another woman’s egg or even another couple’s embryo. It doesn’t make them any less a mother. In fact, it’s more! They WANTED the child. Your statements about mothers who are in their late 40s not being “real mothers” is very offensive as well. To carry it further, your logic means that woman who adopt aren’t “real” mothers either. That’s ridiculous, of course!

          • “Many women go through fertility treatments and have to resort to using another woman’s egg or even another couple’s embryo”
            Really? They have to resort to using another woman’s egg or even another couple’s embryo? Why would they have to do that?
            Here is the difference what did those women need in order to use another woman’s egg or embryo? Permission. They are parents by permission without approval from the court. People that adopt are parents by permission with approval from the court.
            Using another person’s egg or embryo to what? approximate the experience of creating a child with your spouse? Its all very strange to me.

            All I know is that lots of people go looking for their relatives even though they are complete strangers. My friend who was raised thinking her step father was her father still loves him very much but she said after I found her father for her – its just not the same, all those years raised in his home were erased when I saw my reflection in my fathers face.

            • You really should google fertility treatments, embryo donation, egg donation, and the like. It’s very legal.

              • Oh I know its legal. But the the laws are horribly haphazard and inconsistent as Kissarita was just saying. I’m interested in how the laws need to be adjusted so that there is a consistent logic.

    • Indeed these mix-up cases happen and I am inclined to think that they will continue to happen even with good systems in place. It’s the nature of human error. There are a bunch recounted on the blog with a range of facts and solutions.

      It seems clear that for folks who give primacy to DNA, the woman who produced the eggs must be the mother of the child. This actually highlights one of the things that disturbs me about putting such weight on DNA–it typcially leads on to discount the contribution of being pregnant with the child/giving birth. If you don’t put determinative weight on the DNA you can still articulate that a wrong has been done to the woman whose egg was misused and you can still afford her some sort of compensation. But figuring out what to do is tricky. More on this in the main part of the blog very soon.

  10. The problem with this ruling is that it treats parental responsibilities as some sort of sanction or liability. Thus, if the child’s birth was my “fault”, I have parental responsibities, but if I can prove that it was not my “fault” than I am absolved and not considered a parent.
    No human being should ever be treated as if their birth was someone’s “fault.”

  11. This is the danger of crafting laws to benefit a particular industry- it tends to expand to include everything else.

    The law that developed in some locales differentiating between a so-called sperm donor and a father was crafted specifically to respond to the needs of the ART industry and its consumers.

    This is problematic enough in itself.

    But it becomes even more problematic when, recognizing the inconsistency in the laws that apply to assisted conception and traditional means of conception, the courts choose to apply the standard of ART to the norm, thereby altering the norm, instead of demanding that the ART standards conform to the already exising norm.

    This is a perfect example. Julie has correctly identified the absurdity in applying a different law to men who impregnated via intercourse or via another means. However, Julie’s solution has been to apply the standard of ART universally- the father who concieved via intercourse is not a father.
    However, If we adopt this thinking, we run the risk of de-fathering thousands of children!
    The more correct solution would have been to realize that it is the ART standard that is out of sync with the norm, and alter the ART law.

    • Yes alter the ART law. Sperm “donors” are fathers with full parental rights. Why does everyone like to pretend thats not true? They sign those flimsy waivers of parental rights at the clinics when they sell their sperm. A waiver like that signed in a bedroom before having sex….how would that hold up in court if the father wanted to visit his child? The only reason people are raising sperm donor kids without much interference is not that the fathers are not fathers and don’t have rights and obligations its just well – they are anonymous and therefore the obligations can’t be enforced. I think once the sperm donor is not anonymous anymore, he is no longer exempt from complying with the law.

      • This is completely false. Sperm donors do not have the same rights. Many states strictly abide by sperm donor laws that protect the mother. This article alone explains that is the Delaware law too. Sperm donors fathers do try to get rights, but depending on the situation, if the intention can be proven, in more cases than not, the sperm donor does not win. The cases that are more questionable are the “at-home” inseminations where the relationship between the adults cannot be validated, or the validity of the contracts are questioned.

        Also, another reason that sperm donors don’t get parental rights is because if they did, they’d be required to pay child support or some other financial costs for the child as well. Most men who sign up to do sperm donation aren’t looking at it as a way of having more children and increasing their financial burden. Often, they are doing it as a way of making extra money. They’re aren’t the “father”, they are simply the “sperm donor”. BIG difference!

  12. @Marilynn:
    You seem to be saying that intent, form of insemination, being pregnant, giving birth, surrogacy, gamete donation, and raising children don’t matter, and that DNA is the *only* thing that determines a “real” mother or father, and they should have parental rights and responsibilities. If that is indeed what you believe, then how do you answer this:

    If a parent has an identical twin, then should they share rights and responsibilities for each other’s children? They have the exact same genetic connection, and by your reasoning, they are every bit as much a mother or father to their twin’s children, and it would be a “big old lie” to pretend any different.

    If not, then why not?

    • Good Question! I like that one. No, I don’t think that identical twins should share responsibilities for each others children.
      I’m also giving you the wrong impression about what I think the law should be and why.

      I help people look for their family members and through that activity I learned that the facts related to the birth of a child are deliberately falsified A LOT and that the government not only allows it but supports it in some instances. It seemed very haphazard and random to me at first how DNA determines who the father is when the state is going after child support, clearly they recognize that DNA makes a man obligated to a child as a father, why they would they deny a father whose dna matches that of his child, the right to be listed as the legal father on his own child’s birth certificate just because the child’s mother is married to another man? That made me angry. It made me angry to see real fathers cut out of the lives of their own children based on the marital presumption of paternity in the face of DNA evidence. Its a lie. Maybe he is not the best man to raise the child. I don’t think DNA necessarily makes a person a good parent, it just makes them A parent. And nobody should call themselves the parent of someone elses offspring without at least getting their permission through adoption for instance or in the case of donation at least there are those little waivers. I think those waivers need to be filed with the court. I think birth records ought to identify the child as the offspring of two people, if one of them is an anonymous donor, that should be recorded because its a fact. If it is also a fact that the donor waived their rights and agrees to let their child be raised by its mother or father and that person’s spouse, as a step parent or that the donor agrees to the adoption fine. I just think that the inaccurate record keeping was somewhat of a problem 50 years ago when it was just unfaithful wives lying about their husband’s being fathers – its a huge publich health issue now when you add an estimated 100,000 ART births a year to the mix.
      Without a lab and a deep freezer a man that impregnated more than a few females with sperm from a single orgasm would get a Penthouse Forum lifetime achievement award. When people have 30 or 40 siblings living within a 100 miles of themselves and they don’t even know they think they are the offspring of the people who raised them – that is a public health hazzard that can only be reeled in by checking DNA at birth to identify donor conceived individuals or individuals who were accidentally conceived with other clinic patients or with the milkman. I won’t go into what I think are the rights of parents to know where their children are and grant permission to allow others to raise them or the rights of individuals to know their genetic history – Julie has shown me that those arguments are weak. But recordkeeping is a boring fact of everyday life, we all have to report the facts truthfully.

    • Oh and why? Because I think people should be obligated to care for the children they create. The government tries its best to record children as the offspring of two particular people – presumption of paternity is the presumption that a child is the mans offspring – there are antiquated criteria like marriage and admissions of paternity used before certifying birth records. With the presumption of maternity they use witnesses to the birth and the assumption that the woman that gave birth created the child with the man whose paternity was established, they have witnesses to the birth. People lie, there are black market adoptions. DNA will get us closer to truly accurate records (which should be a goal). The problem will be with twins when one woman did it with two twin brothers the same month. DNA is not failsafe. I know that. But its better than the current criteria. Thats all.

  13. hmm… if sperm donors were to lose their legal exemption from fatherhood,
    would the law still uphold their anonymity contract with the sperm bank? or could it require the sperm bank to identify the donor?

    • but they do have parental rights over their offspring or the clinics would not require them to sign those rights away when they provide their sperm.
      The law does allow a parent to change their mind if they agreed to give up their parental rights prior to the birth of their offspring (as with a pre-birth adoption agreement or what julie calls traditional surrogacy where the woman is the mother of the child she’s pregnant with) and I doubt a woman who wanted child support would have to try very hard even if she had at one time agreed that the father would not have to support the baby. I know people that sell their genes would not be signing those releases if the rights did not exist in the first place. Customers that pay to create offspring with those people have to get their permission to do so, they can’t steal the sperm and eggs and then they also need permission to keep their joint offspring all to themselves right? They need permission to do that, I would think its only logical that if you create a child with someone and want to keep the baby all to yourself the other person would have to agree to that. The providers are parents, they are just granting the other parent the enjoyment of raising their child without their involvement.

    • If sperm providers were deemed to be fathers (which is what I take it you mean by “lose their legal exemption”) then I think you’d see more rather than less use of anonymous donors. That’s because if a woman wanted to raise a child without a man (and some women do), the only way she could reliably accomplish that would be by using an untracable and unidentifiable provider and then, after the birth of the child, moving to terminate the rights of the unknown provider. Since she couldn’t identify him, she’d be permitted to commence a legal proceeding by making whatever her best effort was to tell him it was happening–probably an ad in the newspapar. I think this is what is typically done in states where insemination by donor is used but donors might be considered legal fathers.

      Thus, though I know it seems counter-intuitive, I think you are more likely to get women electing identifiable donors if it is clear that the donor is not a legal father. (There are some posts about this a while back in connection with a California case.)

  14. On what legal basis do the courts in those locations (that do not exempt sperm donors from parental status) uphold the anonymity contract? Couldn’t they subpoena the sperm bank to identify the donor?

    I am glad that you took note of my wording “exemption”.
    I chose this wording because I feel it is important that even if the law remains the same that sperm donors are not fathers, it is important to classify it as an exemption, and clearly delineate the circumstances in which the exemption applies. This is to avoid the exception being used to create the new rule- such as this ruling from Delaware.

    Language counts!

    • I think that’s a good question. Massachusetts is a state where if sperm provider would be a father for a child born after assisted insemination if the woman who gives birth is not married. (If the woman who gives birth is married, than the marital presumption trumps.) As a result single women in Massachusetts use anonymous donors, because otherwise they’d end up having a co-parent. I know this doesn’t answer your question, but I wanted to at least affirm that I do know this is what happens.

      As I recall there is a currently pending case brought by a woman demanding that a sperm bank reveal the identity of her donor. (I’ll have to check on its status.) But that’s a little different from having the state insist that the clinic must disclose the donor’s identification.

      I know I haven’t really answered you, and that’s because I do not have a good answer right now. I’ll get back to you.

      • Julie I’ve learned so much reading your blog. I hate all of it, but it is certainly worth knowing. Its so frustrating to me that the law does not start with the basic fundamental biological facts of the mater – simply as a matter of record, and then work from there on the premise that “those people” may not do the best job of raising the child they created. It all seems so underhand to sometimes write the facts and other times alter them if they don’t suit our taste.

  15. Is the guy’s name Robert Adams or Robert Hall? Your post identifies him as Robert Hall for the first 8 paragraphs, and then refers to him as Adams for the remainder.

    If they had intercourse in February of 2008, then it would have been impossible to determine if the pregnancy resulted from that or from the non-consensual use of the sperm sample. That’s why that finding of fact is so crucial to this case.

  16. A similar case in the UK where a woman forged the signature of her ex-husband, became pregnant twice at a clinic using his sperm, and the ex-husband has been found financially liable, despite not consenting to, or even being aware of his sperm being used:

    http://www.telegraph.co.uk/news/uknews/8544783/Woman-had-two-children-after-secretly-taking-ex-husbands-frozen-sperm.html

    • Wow. Well, if it is only about biology, then this is the right result, I guess. If it is about something else, no so much. Assuming the facts as described, it seems clear that the woman engaged in wrong-doing and some sanction could well be appropriate. But I would much prefer to disentangle parentage questions from sanctions questions. It is never okay (in my view) to decide parentage questions (one way or the other) in order to punish the behavior of adults. There has to be some other (ideally child-centered?) justification for the parentage decisions.

  17. How awful. The woman should be charged with fraud and penalized accordingly, instead of raking it in!
    However this does not mean the father is not a father! I am glad that he acknowledges it himself and he and his wife are rising to the occasion.
    Note; this should not obligation him to pay child support for the time he was unaware of the child’s existence. Finanical support is only a function of of the parental relationship, not its definihtion. Any other definition is exploitive. If he is barred through no fault of his own, it is the responsibility of the barr-er.
    In any case, the penalty of the mother should offset the child support liability.

  18. I’ve come to the conclusion that in the case in which someone is actively forced against their will or actively defrauded into becoming a biological parent, they should have parental status with the right to establish a relationship and visitation, but have to pay child support only if and as much as they choose to. They should also have the right to petition for full or partial custody, but in this case they would have to assume the financial responsibilities.
    At this point in time, I admit I do not see any avenue in the legal framework supporting this outcome, However, I think it is the most child-centered approach. Declaring him not a legal parent leaves the kid parentless and abandoned. Plus it has the danger of the law being extended to include thousands of other kids.
    On the other hand imposing child support obligations from the get go, runs the very strong risk of the parent viewing the kid with resentment and bitterness, not much of an improvement over the former.
    This is the one and only case in which i’d separate parental rights from parental responsibilities, not because I think it is right but because I think it is the healthiest in the long run.
    This is also the one and only case in which I’d draw a distinction between intercourse and other means of conception, because in intercourse one should always assume that the possibility for pregnancy exists, so no fraud can be considered.

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