There are a several recent news stories that have been open in tabs on my browser for too many days. (This is the modern equivalent of laying on my desk, I think.) I thought I’d lump them together here to at least get them out into the world of the web. I’ll only attach a few brief thoughts for each, but of course, I can always add more later. I think they all probably tie back to earlier discussion here and I’ll try to link to that.
First, from Spain comes this story of global surrogacy gone awry. A Spanish gay male couple employed a surrogate in California. The surrogate gave birth in Los Angeles and the two men were recorded as parents of the child. This is proper under California law. But surrogacy is not legal in Spain. Under the law of Spain the woman who gave birth is a parent and the men who commissioned the surrogacy are not. (If the woman is married, her husband might also be a parent.)
This is one of those cases where the gap between the law of two countries causes serious problem. I’ve commented on this in the past with surrogacy outsourced to India. Sometimes people can travel to avoid the law of their home country and take advantage of the law elsewhere. But as this case shows, sometimes the law of your home country will turn out to be determinative in the end. Surely the one thing I can say for sure is that cases like this are extremely problematic for all concerned.
Second, there’s this case from California between a woman and a sperm donor. The outcome here is actually just what anyone who knows California law should expect: The sperm donor is not a father. Here’s an instance where the law is quite clear (in contrast to the surrogacy problem above) and the problem is that people don’t know what the law is. I realize, of course, that those who believe that genetics should determine legal parentage don’t like this legal rule, but I’m fine with it. And I think the clarity of the law is admirable. (You can find many other sperm provider/donor cases here, including yesterday’s discussion of the unwitting sperm donor.)
It might also be worth noting that the most combative cases–like this one and another from some months ago–arise when people use known providers/donors. Anonymity protects people using third-party sperm from this sort of litigation. There has been lengthy discussion here of the problems created by anonymity. (You can see some of it in the comments to the last link.) But you can see why people choose anonymity when you see the problems that can arise from the absence of anonymity.
I don’t post this because I am in favor of a completely unregulated fertility industry, but rather to note two points. First, the need for criminal enforcement seems to be tied to an effort to ensure there are no unknown sperm providers. Thus, a few friends acting together to supply a woman with sperm from an unidentifed man would also be subject to prosecution. Second, whether or not a sperm provider is a legal father apparently turns on whether the clinic involved is properly licensed. I don’t think I’d appreciated that bit of line drawing before.