Old News About Lost Sperm

A conversation in the comments on another post led me to this story.  (My thanks to Marilynn who posted the link.)   It’s old news (2007) but still worth thinking about.

In 2005 MH went to a fertility clinic at Oregon Health and Sciences University (OHSU).  He intended to donate sperm to be used for the insemination of his fiancée.   The clinic mistakenly gave the sperm to a different woman–one who was apparently married.   (It’s hard to tell if she was hoping to be inseminated with sperm from a third-party provider or with her husband’s sperm.    I’m guessing the third-party provider.)   She became pregnant. 

At some point after he learned of the mistake (I’m not clear on when), MH filed two lawsuits.  One was against OSHU and sought damages.   You would think he’d have a pretty strong claim on this grounds.   After all, he didn’t agree to be a sperm donor for someone he didn’t know.   The difficult part here might be the measure of damages.   How do you put a numerical value on the harm that was done to MH?   The story says he sought two million dollars for emotional distress.   Is the only damage emotional distress?   (That’s always a difficult thing to value.)

The second lawsuit was an effort to declared the legal father of the child born as a result of insemination with his sperm.   The judge rejected MH’s claim.  I don’t know the basis for that decision, but there are a variety of ways to think about it.   First, as I noted it seems that the woman who ended up giving birth was married.  Her husband–who had consented to the insemination–is presumed to be the legal father of the child.  I don’t know Oregon law, but it appears that this presumption is irrebuttable.

If you think about it, the irrebuttable presumption makes sense.   When a husband consents to the insemination of his wife using sperm from a third party, everyone knows he is not genetically related to the resulting child.   There’s no point in presuming he is the father if you are then going to allow the presumption to be rebutted by DNA evidence.

Anyway, in the face of that irrebuttable presumption an ordinary sperm provider has to lose.   The question is whether you can reach a different result given that MH didn’t mean to be an ordinary sperm provider.

There are obviously different ways to answer this.   But clearly we are somewhat boxed in.   The law tells us that in this case only one man can be the legal father.  (Not very imaginative here, the law.)   You have to choose between the husband and MH.   Allowing MH to gain status as a father will do damage to the couple (who wanted to raise a child together).  Not allowing MH to gain status does damage to MH.  Who should lose?   (Notice that whoever loses ought to be able to sue OSHU for those difficult to determine damages.)

If I think about this with an eye towards the interests of the child, here’s how I think I’d go.   Choices come down to this–child raised by married couple or child raised jointly by two people who do not know each other at all.   Since the two people don’t know each other at all, it’s hard to be confident they are going to be able to work together to raise the child.   So I pick the two people who I know can work together–who in this case happen to be the married couple.

Now in a perfect world, I’d say there should be a plan for the child to know about MH (at whatever the right time is) and perhaps to have a relationship with MH.   This would require that all the grown-ups involved behave well.   And it isn’t the remedy MH wants.

The thing that strikes me here is that someone will lose–maybe several someones.   It’s hard to assign the loss and it’s hard to calculate it’s worth.   But this is my thinking for now.


5 responses to “Old News About Lost Sperm

  1. But Julie, I thought you agreed in a previous post that there really is no empirical evidence as to which scenario is in the best interests of the child?

    “When a husband consents to the insemination of his wife using sperm from a third party, everyone knows he is not genetically related to the resulting child. There’s no point in presuming he is the father if you are then going to allow the presumption to be rebutted by DNA evidence.”

    A small correction: That’s true for IVF but not for inseminiation. Even though the facility may hold the consent documents, there is still no way to prove that that particular inseminiation resulted in the pregnancy.

    Also, for both IVF, the fertility docs are rarely the same docs who attend the birth, so although SOME people know, not everyone knows. If the couple doesn’t admit, and nobody else sues, it would be nearly impossible for the state to find out if the couple had lied.

    • I’m not sure I understand some of what you have to say here, and I fear some of this is my own fault. What scenarios does “which scenario” refer to?

      And here’s the other point I was trying to make: If a male/female married couple uses sperm from a third-party then we know that any child that results will carry the DNA of the third party and not the husband. So if you say “the husband is presumed to be the father of the child” but then say the presumption can be rebutted by a DNA test you’re not giving him much of a presumption. It’s fragile–can be rebutted very easily. And that seems to defeat the whole point of having a presumption–which is to allow that married couple to create a family. So you pretty much have to say the presumption cannot be rebutted by DNA tests in this situation and that is typically what the law does.

      This is not to say that everyone knows that in these specific cases the DNA doesn’t match up. All that you say about that is true. But it isn’t quite the point I was trying to make. I was thinking from the point of view of someone trying to create law here. if you were writing a presumption for the married couple using third-party sperm scenario, you would make it a presumption that could not be rebutted by DNA.

      • I am referring to the following dialogue between us:
        29 Responses to A Different Way Of Framing The Choice: Marriage vs. DNA
        ki sarita | June 17, 2011 at 8:40 pm | Reply 00 iRate This
        I can see the point that the child’s interests might be better served by denying the existence of the lover. I am sure that this is true in some cases. However, I am just as sure that in other cases it is not. In order to override what we know to be biological fact, we would need some pretty strong empirical evidence, not just speculation.

        (This is assuming we believe that it is ever justified to ignore fact, which is also a point of dispute on this blog)

        Julie Shapiro | July 2, 2011 at 8:02 am | Reply 00 iRate This
        What would we need empirical evidence to show? I’ve never been clear on whether there is empirical evidence to support a preference for DNA/genetic connection.

        I can see many reasons why this might be hard to study. Would we try to compare the well-being of children born of extra-marital affairs who are raised by the husband/wife vs. the well-being of children born of extra-marital affairs who are raised by the wife/lover?

        I’m not saying that empirical evidence is useless, just that it would be hard to get and subject to all sorts of interesting criticisms if it came around.

  2. Once a person’s offspring are born they become a parent and that is nothing anyone can change no matter how far they run or how tight they shut their eyes, it will not go away. Marriage is, at best, an until death do they part kind of an affair. That woman needs to grow up and get her priorities straight. Her kid comes before her husband. Your very provincial for a feminist Julie, you surprise me with your attachment to the husband is always the father thing.

    What they should do is give her primary physical custody of their child and he should have liberal visitation and phone calls every night. The father is not trying to get full custody so his fiance can pretend she’s the baby’s mother…that would just be sick to cut the baby off from half its relatives like that. And why would the father want to do that, deny his child access to its loving mother and her husban’s love and support? They can work it out for the sake of the child.

    He is trying to give the child access to everything he rightly deserves yet the mother is trying to prevent him from having that to protect the sanctity of a marriage that is at best until death do they part knowing full well that the begetter/begotten relationship goes well beyond the grave. The mother and her husband are living in the past like spoiled brats trying to make this child be someone other than who he or she really is. They wanted to make a baby together and that did not happen. The mother wanted the baby to be related to her husband but that did not happen. They wanted the child to just be their own baby but that is not what happened. This baby is not who they wanted it to be and they are willing to block half this child’s family from contact in order to preserve their biological fantasy. They are making this child into a cartoon of the baby they envisioned, its tragic. They will only love the baby if the baby is not part of its own family. They will only love the baby if her husband gets to be its father. Are you getting how this will appear to the child?

    The Father wanted to have a baby with his fiance and that did not happen but he is dealing with it like a grown up and letting go of what he wanted for the love of the child he made with a stranger. He does not care that his baby does not have the mother that he was hoping for he loves the baby with the mother it has. Are you following me yet? He loves his child despite the fact that it does not fit what he intended. That is love. That is parenthood. That is what a man of character does in that kind of situation.
    He’s not whining like a pu**y that his fiance did not get to be the mom of his baby and he’s so damaged. He’s suing OHSU because he may never get to meet his own child and its all their fault. I think your wrong, if the mother “looses” she gets to keep her child, she’s lost absolutely nothing than the ability to pretend the child is her husband’s baby and F her and her stupid little dream. She’s playing god with a human being and its just not right.
    His child is beautiful with the mother that he or she has. He seems to respect the reality of who the child is and respect his child’s maternal family where the mother is just stuck in the past unwilling to love her baby and her baby’s other family. She is a bitch and I kinda hop she gets busted out at some point. I might just go out of my way to make sure that happens some day. It probably was not even her egg. Betcha 10 dollars it was not her egg and oh boy that makes me even more mad at her and her husband.

    I wish King Solomon was here to judge the behavior of her and her husband and the man that wants to share custody to see who is really acting in the child’s best interests. Kisarita, you there?
    long comment but worth every word for me.

  3. “She is a bitch and I kinda hop she gets busted out at some point. ”

    Why wouldn’t you hope for the kid to grow up well adjusted with positive relationships with the people raising him, whoever they may be? Don’t you think the kid’s biological father hopes for the same, even if he loses the court case?
    As the mother in King Solomons’ case said “Please, let her have the baby, just don’t kill him!

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