The Posthumous Sperm Donor and the Permanance of Parenthood

There’s yet another case about the paternity of a child born from sperm used after the death of the man who produced the sperm.   (There’s a whole string of these, some of which I’ve written about.)   As is often the case, the facts here aren’t in dispute–what is disputed is how the law applies to those facts.

Janice and Don Schafer, Jr.  were married in June, 1992.   Three months later, Don was diagnosed with cancer and warned that chemotherapy might make him sterile.  In December, 1992 he had sperm frozen for later use.   He died in March, 1993, at which point the sperm had not been used. 

Janice used the sperm to conceive in April, 1999.  The child, WMS, was born in January, 2000.   (That’s a bit less than seven years after Don’s death.)  

The question presented is whether WMS is entitled to social security benefits that are available to children whose parents have died.    In this instance, the court (US Court of Appeals for the Fourth Circuit) says “no.”   That’s in contrast to the opinion of the US Court of Appeals from the Third Circuit, which answered “yes” ina similar case I wrote about earlier this month.     

The cases turn on the interpretation of the federal and state statutes that govern social security and I won’t go into detail here.  You can certainly read the opinions and I wonder a bit whether the Supreme Court will take one of these cases to insure uniformity in the federal system.   We’ll have to wait and see on that one.  

In the meantime, there is one striking difference between the two cases and this leads me to some other musings:  In the Third Circuit case, the child was conceived seven days after the death of the sperm-provider/husband rather than six years later, as was the case in the Fourth Circuit case.   Does that matter?   

It’s hard for me to resist some notion that the lapse in time does matter.   On a purely emotional level it seems like it should.   But law isn’t directed by emotion so it’s worth making the effort to be analytical. 

As I’ve noted before, one thing interesting about the posthumous conception cases is how they fit with different ideas of what makes a person a parent.   It seems to me that if you think DNA defines (or should define) legal parentage, then it’s hard to explain why the passage of time matters.   The genetic relationship between the decedent and the child born nine months after his death is just as close as the genetic relationship between the decedent and the child born ten years after his death.  

(I do understand you can say that we shouldn’t allow people to do what was done here, but that ship has sailed, as it were.  We have and do allow people to do this, leaving us with the question of how to respond when they do what is permitted.)  

Curiously, you can say more or less the same thing if you take a functional approach (as I do).  If you think it’s the functional relationship between adult and child that makes a person a parent, then it is very hard to explain why the passage of time matters in these cases.   There is no functional relationship between the sperm provider and the child whether the child was conceived a week after the sperm provider’s death or a decade later.  

So if the two cases are different, it must be because of some other factor.   What would that be?   (I’m going to assume intent in both cases, just to take care of that possibility.) 

All of this leads me to think about a comment Kisarita made on the last post.   The passage of time is particularly important for de facto parents.   De facto parents are created by the passage of time and it seems like they might also be destroyed by the passage of time.   If a person who has played a parental role leaves a child’s life, is the person still a parent ten years later?  Why?  Can I make it be a one way street?  

The permanance of parenthood is something of a given–if you are a parent, you are a parent forever.  Seems like I’m going to have to work through how that might fit with a de facto framework.


16 responses to “The Posthumous Sperm Donor and the Permanance of Parenthood

  1. “(I do understand you can say that we shouldn’t allow people to do what was done here, but that ship has sailed, as it were. We have and do allow people to do this, leaving us with the question of how to respond when they do what is permitted.) ”

    No, the ship is still bobbing in the water right off shore, like a sitting duck. We don’t have to leave this legal, it should be prohibited, and people that facilitate it should be punished, and their children taken from the unfit parent who proved their reckless disregard for their children’s health and well-being by conceiving them in an illegal and unethical way. A more loving and ethical parent will parent them, because their bio-parent proved unfit. Their bio-relatedness isn’t a trump card that allows them to continue parenting their offspring. Unfit parents lose their parenting rights even if they have been parenting a child for years and the child knows no other parents.

    Of course, the birth certificate should record the identity of the progenitors, forever, as that will never change.

    Meanwhile, until it is properly prohibited, people will continue to force souls into unethical circumstances, rather then letting them take residence in a better circumstance in some other part of the world, and judges will rule this way and that in an attempt to do justice to everyone involved in a terrible situation. Each case is irrelevant to the larger point that the practice needs to be stopped.

    • It’s certainly true that the use of sperm after the death of the donor could be prohibited in the future. Whether it should be is an interesting question but not the subject I intended to raise here. Perhaps another post, another time.

      Meantime, it is allowed. And even if you think it is a practice we ought to be bar in the future, someone has to decide the cases that come up in the present. I think it would be better to do that in a coherent and principled way rather than have an inconsistent hodgepodge.

      • Why is it better to have a rigid law that might not be the best outcome for each different situation? Shouldn’t judges have latitude to balance all the interests as best as they can in each case?

        • This is one of those core questions about law generally and family law in particular. When you get down to a specific custody case, the question for the judge is typically “what is in the best interests of this child?” which is, I think, the sort of individualized you are suggesting. It’s actually quite unusual for law to operate like that, and some people might say that custody decisions aren’t really law–they are just judicial decision-making.

          I think the critique there is that law, as we understand it, is usually a set of general rules that apply equally to all of us. If you walk into a court room with essentially the same facts, then you walk out with the same result. But custody cases don’t work like that. You can have almost identical facts and get dramatically different results for a whole lot of reasons. For instance, one judge might think that it is best for children generally (or this child) to have a stable and orderly environment while another judge might think what’s best for children (or this child) is that kids be free to find themselves. Thus, they might think different sorts of criteria count for more.

          In any event, you’ve put your finger on a core tension in law. Most people want some fixed principles (parents have rights that will be respected and there are general rules for identifying which people are parents) and some room for individual variation. It’s getting the specifics of the balance right that turns out to be so very hard.

  2. Say you disagree with the conditions the children were born too. Can you identify any additional future danger likely to arise from the children remaining inthe care of their remaining biological parent? And who exactly are those loving ethical parents lining up to care for these children? and Who exactly decides that they are more ethical?
    If you can’t provide convincing answers to these questions stop trying to destabilize childrens lives in effort to get back at parents who don’t behave as you think they should.

    “unfit parent who proved their reckless disregard for their children’s health and well-being by conceiving them in an illegal and unethical way. A more loving and ethical parent will parent them, because their bio-parent proved unfit.”

    • well put challenge, ki sarita. “Can you identify any additional future danger likely to arise from the children remaining inthe care of their remaining biological parent? ”

      Well, they can’t take care of them from jail, can they? And even if they aren’t jailed, they’ve still proven themselves unfit by making decisions with utter disregard for their child’s well being. Who knows what else they’ll do? Leave the kid unattended while they take a bath, maybe?

      The baby would enter the state foster care system, which already knows how to find safe homes for children. We don’t leave children with abusers, kidnappers and rapists, and that’s what a someone who uses sperm from a dead person is. (Yes, I’ve said the same thing about all intentional unmarried conception, but that’d overwhelm the foster care system, so we’d probably have to let people get away with that for a while, and stop it by other means)

      • “The baby would enter the state foster care system, which already knows how to find safe homes for children.”
        You’re kidding, right?
        Have you ever actually MET a foster child?

        If you think foster care is so cool, I wonder why you think it so cruel evil and criminal to separate a child from it’s biological forbear in the first place.

        • Well, it should only be done out of necessity, in cases when the bio parents have shown selfish lack of regard to the child’s welfare. Are you in favor of leaving kids with out-of-control drug addicts?

          The proportion of kids that enter the foster system because their parents violated the law against intentionally conceiving with a dead person’s gametes would be miniscule. 99% of the kids that are removed form their parents would be removed due to drugs or physical abuse.

          • I’ve resisted commenting on this point because it seems to me absurd, but I find I cannot resist. There’s an unarticulated assumption in John’s logic that I think most disagree with. If you do disagree, then the argument falls apart. Here’s my effort to unpack it.

            If we can identify a particular category of parents who inevitably (or perhaps nearly inevitably) harm their children, then we might shape the law to create a presumption against them or something like that. We are (and should be) reluctant to presume against whole categories of people in this way, preferring to make individualized judgments.

            So for instance, many parents who have addiction issues may place their children at risk, but we don’t generally bar people from performing as parents simply because they have addiction issues. We examine the individuals involved before making that determination.

            If people have a demonstrated history of selfish behavior that has harmed their children then we may well take action against them vis-a-vis their status as parents. But that’s an individualized determination. We do not generally bar selfish or immature people as a category. (Wouldn’t it be interesting to try that one?)

            The key to any categorical treatment has to be that all (or nearly all) people in that category harm their children. Otherwise it is unfair to the members of the category (and their children) who do not harm their children.

            So here’s the critical assumption: People using third-party gametes are necessarily causing serious harm to their children in doing so. If you do not accept this assumption, then John’s argument falls apart: There’s no basis for taking all donor-conceived children and placing them into foster care.

            It’s quite easy to show that John’s proposition is wrong: There are many people conceived using third-party gametes who are just fine (and I say that knowing that we’ll all have a long debate about what “fine” means.) Taking these children from their families would do nothing but cause incalculable harm.

            • There are many people raised in foster care who are fine, and many people who are abused and molested by their parents who are fine too. Lots of victims are “fine” but we don’t take that into account when punishing the culprit (hmm, i guess there are “victim impact statements” read at sentencing, so I guess it is OK to say “no harm no foul” sometimes, but I think in general the law takes the approach that it is the crime that is punished, not the harm the crime caused). Most people driving drunk get home safely, but it’s illegal whether they crash or not; we arrest people for stealing whether the victim notices the theft or not.

              So I don’t think we have to prove that all children who are created from deceased donors or third party gametes suffer significant harm in order to say that we will not reward their parents illegal unethical actions. We don’t even have to say most of them are harmed. Just recklessly putting people at risk of harm, intentionally disregarding their potential harm, proves that someone is unfit to be a parent.

              I’m surprised you are taking the side of the DNA provider now, insisting that they be allowed to remain legal parents. Or I guess that’s ki sarita’s position, and you are taking the side of “intended parents”, who perhaps used both sperm and egg donors, so never mind. I think “intended parents” shouldn’t be considered fit parents right off the bat. They’re more like slaver owners, thinking they have a right to own a person. Only natural procreation is ethical, because it is the only way for a person to claim responsibility of their own existence and dignity.

  3. Julie I am afraid I did not quite understand how the de-facto parent situation can help us resolve this question.
    Examining another avenue, lets go back to what you said- emotionally it matters whether it was 7 days or 7 years ago, but that law should not be based on emotions.
    Still I do not believe emotions are entirely irrelevant to law. We should analyze the source of our emotions; perhaps we will uncover something that can be applied to a legal framework.

    • I don’t think the de facto doctrine does much to address this problem. From the de facto standpoint, a person who is before the child is concieved cannot be a parent.

      Indeed, there are many ways in which it makes no sense to say that the deceased sperm provider is a legal parent. Legal parentage is all about rights/obligations with respect to the child. A dead person cannot exercise the rights (to make decisions, say) nor can he/she fulfill obligations. So it strikes me that even people who want to use DNA as a criteria should agree that once a person is dead they cannot continue to be a legal parent. (They are obviously still a genetic ancestor.)

      Perhaps what all this tells us is that we are focussing on the wrong inquiry. Maybe the question shouldn’t be about “is this person a parent.” (The way social security is structured does send us there, but put that aside.) Maybe the question should be “why might a child get survivor benefits?” If we understood that, then we’d know if it made sense to give them to these kids. And we would steer clear of the topics that seem rather incendiary. If the money is a substitute for support the person was providing, then the child conceived after death shouldn’t get it.

      • When a parent dies, aren’t they automatically no longer legal parents?

        As far as I can tell, the only relevant difference with posthumous conception and other dead-parent scenarios is that there is some grounds to contest the inheritance and survivor benefits by those that would normally pay them. Isn’t that the question? Whether they get the money? How is it different from illegitimacy laws, which said that it isn’t the kid’s fault, so he deserves the money?

  4. Yes, I think it is correct that when a parent dies he/she is no longer a legal parent. What that means is the way that the questions are framed in the posthumous conception cases is odd from the get-go and I think it does skew the analysis. You’re right, too, I think about the important differences between the posthumous conception cases and other dead parent scenarios.

    Perhaps it also highlights the many conflicting ways we use the word “parent.” It’s perfectly reasonable to say “my parents are dead” although of course if they are dead, they aren’t my (legal) parents any more. This flexiblity of language is part of what makes careful discussion of these issues difficult and perhaps this is just a good example of that. If we shifted the question to what really is at issue–should a child conceived after death get social security survivor benefits based on his/her relationship to the decedent?–I think we’d have a much better time figuring out an answer.

    • Do adults have parents?

      • Here’s proof there are no easy questions.

        If a person dies without a will and has no spouse and no children, a surviving legal parent might inherit a share of the estate. Thus, adults may have legal parents and the legal category “parent” may still be important. There may be other instances where this is true, but this one comes to my mind first.

        On the other hand adults (and I guess I mean legally competent adults) make their own decisions and are responsible for their own support. There aren’t people who can legally tell them where to go to school or where to live, nor are there people who have a general obligation to support them. Thus, adults do not have legal parents in that sense.

        Finally, I bet if you ask them, most adults think they have parents, though they might say that their parents have died. Thus, I think most would hear the question you raise as one arising from history (are the people who used to be your legal parents still living) or about social parents.

        So the answer all depends on what one means by parents and the thing is, I think many people (me included) probably mean different things at different times. This lack of consistency/precision clouds discussion, I’m afraid, but there you are. Same thing is true of words like “family” only possibly even moreso.

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