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.