Unwitting Sperm Donor, II: In The UK He Is A Father

Some time back I wrote about a Delaware case involving a man who was an unwitting sperm donor.  In that instance the court determined that the man was not the legal father of the children.    In a recent comment, Mark Lyndon pointed out this recent case from the UK which, while somewhat similar, reaches the opposite conclusion.   

The parties are unnamed, but here is the basic deal.  A married man was contemplating medical treatment that may have effects on his fertility.   In anticipation of this, he had sperm frozen in 1999.   In June, 2000, he and his wife separated.   

Not very long after that, the wife went to the clinic where the sperm was stored, forged his signature, and became pregnant using his sperm.   (She says it wasn’t a forged signature but rather a “simulation.”  If anyone has any idea what the distinction drawn here is, I’d love to hear about it.)  A girl was born in June, 2001.     She repeated this process and a boy was born in 2003.   (In the meantime, the former husband had remarried and had two other children with his new wife.   I don’t think this has any legal significance.) 

The former husband was not even aware of the existence of the children until 2004.   At that  time, one of the kids was seriously ill and his former sister-in-law told him.   The man has since formed a relationship with both children who make fortnightly visits to his home.    

In many ways, the core of the news coverage seems to be about the financial consequences of this tale.   For instance, in 2007 the man was ordered to pay his ex-wife an additional 100,000 pounds as the initial divorce settlement did not take the children into account.  That’s hardly surprising as they didn’t exist.     And the money questions are hard, partly because we’ve so closely tied support obligations to parentage. 

What I mean is this.   No one seems to question that the ex-husband is the legal father of these children.  (It seems to me he may want that role.)   If he is the legal father, then he has an obligation to support the children, right?   And when did that obligation begin?   At the birth of the children?  At his discovery of their existence? 

You may well think (as I do) that the ex-wife behaved badly.   But does this effect the entitlement of the children to proper support?    It seems to me it should not.   And perhaps that 100,000 pound award is past child-support?   (I know it is irritating that the child support award goes to the ex-wife, but if the children primarily live with her, that is the way it is typically done.   Perhaps this is worthy of a separate discussion.  It’s also possible that I’m wrong about what the 100,000 pound award was far–and if it isn’t past child support than this piece of the post is irrelevant.)

For my purposes it is important to keep in mind that there are two sets of questions here.   First, who are the legal parents of the children (and, all important to me, how do you answer that question)?  Second, is there a wrong here for which someone should answer?   I separate these questions because I don’t think that legal parenthood should be manipulated in order to punish wrong-doers.  

So let’s go back to the badly behaving ex-wife.   What is the appropriate sanction for her bad behavior?   Perhaps she should have to reimburse the ex-husband for some of the costs he has incurred as a result of her actions–and these might include child support.   (This is quite tricky, because I don’t want to diminish the support for the children.  Perhaps it’s all just a question of labels.) 

Finally, assuming there is a wrong here, is there anyone else we should blame?  What about the clinic?  The clinic accepted the forged/simulated consent forms presented by the ex-wife.   Was it wrong to do so?  I suppose this might depend on how obvious it was that the signature was not authentic?     Or should it have been a clue that the ex-husband never appeared with the ex-wife?   (I suspect it is not that uncommon for only the woman to appear, which means the failure of the ex-husband to appear isn’t necessarily a red flag.)

3 responses to “Unwitting Sperm Donor, II: In The UK He Is A Father

  1. If you put the rights and needs of the children first many believe that the financial support of the biological parents is an obligation regardless of how they were brought into the world.
    In the UK (and in most countries as far as I can see ) there are no laws clearly protecting men who donate sperm privately either knowingly or unknowingly, should the woman go to court for financial support. In the UK there would be no expectation that this man would not be held financially responsible as the children are biologically his. Regardless of the reasons why or how these children were brought into the world the current laws expect the biological father to meet his obligations.
    And why we need to look at current laws, understand that this is only one example of modern parenting arrangements (in this case not even telling the bio father) and re-define the role of parent and their obligations financially. Looking more closely at meeting the needs of all involved, and especially the children.
    This particular case is a disaster. How can the DNA of a person be used to create another human being from simply a signature? Forged or not. It should be the responsibility of clinics to ensure that both parties are fully aware, if only to protect the resulting child or children. Laws and policies regarding this issue must be addressed. As with most mistakes we cannot do this retrospectively; the children in this case should not suffer, and are entitled to the support available by law. However we must use this to prevent future mistakes.
    My solutions would be for the man to sue the clinic for allowing this to happen without at least a JP witnesses signature, and be responsible for paying the maintenance to the children that has been demanded of the unwitting sperm donor. He should not suffer, the children should not suffer and unfortunately the woman cannot suffer financially or her children suffer. There must be some consequence for her however.
    I do believe the status at the time is relevant- ie whether or not they were separated or divorced. In the same way that I believe the law changes if a wife forges the signature on a cheque and steals from her husband may not be the same as if she does this when no longer a legally recognised partnership. So if she ‘stole’ his DNA when married this may affect things considerably. And if we expect wives (or ex wives) who deceptively steal money from their husbands (or ex husbands!) to be dealt with by the legal system then what is the difference if it is his DNA? She deliberately stole something that should surely belong to him. Should his stored sperm considered marital property?! If divorced perhaps she was entitled to half of it by law anyway…..!!! yes, the case needs looking at. This cannot happen again. And why we need to start thinking of sperm as much more than a product and more as potential future human beings. And start protecting those little humans so that they are not brought into the world through dishonesty and questionable ethics, regardless of what the woman wanted for herself.

    • As your comment suggests, many things overlap in this story. The man involved may feel a moral obligation to be father to these children because of his own convictions about the significance of his DNA being used. Not all men would feel this. Then the law may create/reinforce this feeling, by recognizing him as the legal father (which it apparently does) or it may not. If he is the legal father, simply because it is his sperm, then sperm banks and fertility clinics may need to do more to ensure real consent from those who provide the sperm. Perhaps they should do so anyway, but it seems to me that law supporting parental obligations would make this need more acute.

  2. marilynn huff

    Well the law does not do enough to regulate the fertility industry. You and I may disagree on lots of stuff, but I bet you’d agree that anonymity works more in their favor than it does in anyone else’s favor. What a great way to hide error from everyone involved! People who visit clinics because they want to raise their own genetically related child trust that the Doctor’s are using their genetic material and not that of another patient or some random stranger. They also trust that their genetic material is not being used to create children that they will not know about that will end up being raised by total strangers. They need to document consent to these procedures more rigorously and consent to relinquish their authority over their children and share that info with the commissioning parties so they know that guys consent is associated with that dna sequence and if their baby comes out unrelated to that guy according to a dna test then the clinic needs to figure out who the parents of the child are before that kid goes home with the wrong family. (If the child is not related to at least one parent)

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