Free Range ART?: Get Your Fresh Sperm Here…..

Just as there’s been a rather lively discussion on regulating ART, this story surfaced.  (I think it is actually the cover story on Newsweek.)   It’s about what amounts to a DIY movement for those seeking sperm, largely made possible by new communications technologies like the web, coupled with marketplaces like Craig’s List.  It’s both fascinating and (from my lawyer perspective) terrifying.   Go read it first and then come back here.

I just need to get the terrifying part out of the way first.   Practically no one in this story seems to be paying any attention to the law.  Even the author (Tony Dokoupil) only breezes by the “what if the donor claims custody” question.  I realize it’s my personal bias, but law matters here.  Matters a lot.

If the woman is impregnated via sexual intercourse, then I think it’s likely that the donor is legally the father of the child.    There may be some question if the woman who becomes pregnant is married, because of the marital presumption but overall this just generates more confusion and uncertainty.  (The post I just linked to reveals that in Kentucky the donor is the legal father even if the husband and wife don’t want him to be, but other states won’t reach that result.)

Even if the woman isn’t impregnated via intercourse, there’s no legal clarity.   As I’ve noted repeatedly, the variation in state law is wide.   In New York, the donor is a legal father.  In California he isn’t.   In Missouri, he is because there’s no doctor involved.

If I were Beth and Nicole (the lead couple) this would worry me quite a bit.  It ought to worry them.   Do they really want to co-parent with someone they just met?   (See these other recent posts about recent DIY efforts gone awry.)   Do we need to add in that not every state will recognize their marriage?

As anyone who’s been reading this blog ought to know by now, there’s a great deal that goes along with being a legal parent–both rights and obligations.   And unless people are rushing off to court to do legal maneuvers that might terminate rights, there’s no obvious time and place this is going to get sorted out.  It’s inevitable that in some cases issues will arise and they will arise at the worst imaginable times and places.

I suppose my bottom line is this:  you can certainly set up alternative markets for provision of sperm, but these aren’t law free zones.  They are just places where people aren’t paying attention to the law and that cannot be good.  One never wants to be surprised about who the legal parents of a child turn out to be.

Now that I’ve got that out of the way (and I’m sorry if it came off as a rant, but there’s a lot at stake in these cases), let me say a little about what I find fascinating.   Another recent thread here–one I was planning to pursue today–is about what makes people offer up their gametes for ART.  I’m very interested in the work of Rene Almeling on gender differences in how appeals to gamete providers are framed.   The transaction where men sell sperm to sperm banks is framed as a commercial one–earning some money.   But the men in this article seem to have a different motive–something that might be more like altruism.

But you know, it doesn’t quite feel like altruism to me–or at least, some of the men quoted don’t quite sound like they’re being altruistic.   There’s something about the tone of what’s going on here that makes me just a little queasy, in fact.

And here I think I’d better take a break to think a bit more.   I don’t want to reject the non-commercial sperm forum without a good reason to do so–the idea of moving away from the realm of mega-commerce ought to be appealing to me.   But there is, as I said, something here that makes me uneasy.   Best to figure out what that is, right?

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13 responses to “Free Range ART?: Get Your Fresh Sperm Here…..

  1. Yes, it should make you feel uneasy. Even as the creator of the first of its kind- helping single women, lesbian and infertile couples connect- its worries me as so many are now setting up sites with a range of motives- many NOT to help build families where the child can know of the biological father. Many are in fact places men go for free sex- and only last year there was a woman having NI (sex) with numerous men (who were having NI with numerous women) before realising she has HIV. She didnt join FSDW as it is AI only and also as she would have to pay a membership fee. I actually charge that in part to operate the site but also because I worry about anything that is completely free- and who uses that. If not prepared to pay $20 to join a moderated site with behaviour code then are you really ready to have a child- emotionally and financially? And FSDW donors do talk of a different type of woman and couple who join FSDW as opposed to the other sites. The genuine men want that type of woman. (FSDW dont want the other men- quality not quantity)

    The law varies from country to country and state to state and FSDW has a legalities page. Most do understand that the laws are grey with regards to private donations – but go ahead anyway because what they can get outweighs these ‘risks’.
    And I would always advise everyone to check what applies to them. However in practice there have been only a handful of cases legally, because for the most part both party wants the arrangement. The man does not want financial support- or parental responsibility- and the parent’s raising the child dont want the joint or shared custody. So they make their arrangement and stick to it.

    Legally things are changing, and it seems (as usual?) the US is the last to follow suit. For example a sperm donor – the biological father- of a child in Australia who has been supporting the child financially and has been recognised as the legal parent until the social and bio mother split, has been replaced by the social mother. That was their arrangement from birth and it has been upheld.

    In the UK family lawyers recomment using known donor agreements however it is difficult to know how these would hold up as there have been no cases. Only a couple- eg a lesbian couple who sued the sperm donor for financial support and won- but they only did this as the donor changed the terms of the agreement and was actually being ‘Daddy’ and the child would stay with him at weekends etc. They had no contract.

    FSDW aims to offer the best of both worlds with regards to creating a DC family. Helping them find a donor who will donate for free, through AI (no sex) and to be known. I encourage early disclosure and most of my members included the donor in the life of the child from birth- but with them being the hands on parents. Our oldest children (born as a result of matches on FSDW) are now 9 and are reported doing very well. They are not having the same experience of ‘sperm bank’ children who dont know about their bio father – other than perhaps statistics on a piece of paper. They have a mum and dad (or mum and mum) who are the ones who sooth nightmares etc however they also have a ‘donor dad’ who is recognised as important.

    There are lots of ‘free donor sites’ now however that do not really focus on this- especially those such as coparent-match who seem to be money driven.

    FSDW (Free-Sperm-Donations.com) was set up long before the FSDR and there are differences even though FSDR is better than most. I think Beth and Nicole actually found their donor through FSDW but of course they dont say that. Why then set up a site in competition? Or name it something almost identical to FSDW (FSDR)

    FSDR allows for NI (sex) and also anonimity. Great for many men, but not something many women want- especially not the sex part. And when sex is ok on a site it gets tiring turning down those daily ‘offers’.

    NI is the most problamatic issue as these men have a reason to donate other than for altruistic reasons and to be known to the child. There us also more chance of the man having HIV and STDs so although Beth Gardner flippanrly talks of quick and easy STD testing women should always try to reduce the risks as much as possible. Even the best HIV tests can be used too early to tell the woman he has HIV. So why use a man who is openly having a lot of sex?

    AI also shows clear intent that this is a sperm donation and different to a one night stand – or mutual sex. Any family lawyer will advise people to complete a known donor agreement – and to make everything clear that this was a donation. Again this reduces risks- including for the donor who in most cases doesnt want parental responsiblity or to pay financial support.

    It is a mine field and yet FSDW (Free Sperm donations Worldwide – originally created as Sperm Donors Worldwide) is still the only site promoting the safest and most child focused options.
    FSDR may claim to – but the fact that almost all of their donors seem to offer NI (sex) and there is not a ban on anonymous donation- means that in practice they arent doing this.

    Men donate through FSDW – where they cannot get free sex- as they want to share information for the child- and want to choose the recipients. They care that the child will have a good life. And they are happy for the child to know of them. No, they dont want to be a ‘father’ in the traditional sense as there is a mother and usually a couple who are wanting him to help THEM be that. But he is more intelligent and caring- knowing the child cant get info or know about their biological origins while growing up- when it counts- if they use a sperm bank,.

    Free is good- as again there is no other reason to be helping. Private is good as it avoids the issues relating to DC children born through sperm banks. But to be a good idea it has to go further- it has to be free, private, known AI sperm donations. And despite what they claim FSDR does not offer that. It is becoming like the other popular free sex sites (coparent-match etc) and needs to stand up and join FSDW to be different- and set new standards. Or it will be just another Tadpole forum. And yes, there are numerous reasons why you should be uneasy about that.

    • There’s really a whole world out there, isn’t there? I suppose as with so many other things, when there are dozens of sites ostensibly providing similar things, some will be better/more responsible than others. I wonder about how people comparison shop among websites/web services.

      I know I’m singularly focussed on law–and that’s possibly reasonable, given my profession. But I find the legal uncertainty quite troubling. Even if people are aware of legal uncertainty, do they understand what it might mean to them? There are a regretable number of cases in the US where people end up in court litigating the rights of donors to be parents. These are difficult and wrenching cases and cannot be good for the kids involved. Maybe they are a minority, but there’s a long time for trouble to develop in the life of a child, and so I do worry.

    • Emma, I think its great that your site encourages men to know and be known to the children they create over the course of their lives. Obviously medical information is a two way street and knowing the health of each child born will help those men make informed reproductive choices. If he is aware that his children have physical or developmental difficulties he can limit his donations to people prepared to raise children with special needs or stop donating altogether. Its horribly irresponsible of men to reproduce themselves blindly in a vacuum as if their children were all perfectly healthy when they have no idea if its true or not. Ongoing communication between the men and their offspring is critical. Health problems that develop in adolescence will also influence his reproductive choices and he needs to be the gatekeeper of information relevant to all the children he creates and keep each child’s mother informed of whats going on with all his other children. Choosing to reproduce themselves this way is an enormous responsibility.

      I have a question though, you said “If not prepared to pay $20 to join a moderated site with behaviour code then are you really ready to have a child- emotionally and financially?” Are you suggesting that paying to find a mate makes a woman a better mother? I know mate is not fully accurate but i mean a man to father her children.

    • I’ve only just seen this thread, or I would have replied before.

      As I’ve stated before: the FSDR was created from the FSD Yahoo group, which was founded in 2003 and predates the FSDW (there is another Yahoo group still running which was started in 1999). The FSDR name was not chosen to be similar to the FSDW, and will be changing shortly to the KDR (Known Donor Registry) anyway. The new version will no longer allow for donors or recipients to say they want complete anonymity, though this is not something your site or ours can enforce.

      The About Us page says the following:

      Our goal is to create an open, active community resource for people who have or want to have children through private sperm, egg and embryo donation and promote healthy and safe practices while doing so.

      Free Sperm Donor Registry is open to everyone, regardless of gender, sexual orientation, race or religion.
      Our Values:
      Educate donors and recipients on safe and legal procedures
      Encourage Artificial Insemination (AI) over “Natural Insemination” (NI, i.e. sex) *
      Advocate for the rights of donor-conceived children
      Strongly discouraging permanently anonymous donation and parental secrecy **
      Keep it free

      You said this: “If not prepared to pay $20 to join a moderated site with behaviour code then are you really ready to have a child- emotionally and financially?”

      FSDR is also a “moderated site with behaviour code” Why should paying $20 suggest that anyone is emotionally and financially better prepared to have a child?

      One of FSDR’s core values is that none of the founders or moderators will ever profit from it. It will always be possible for donors and recipients to connect for free. The FSDW on the other hand charges “US$45 for the first 30 days and US$30 thereafter for every 30 days until you cancel”. Co-parent Match is also not a free site btw.

      You deleted all my comments on your Facebook page criticising the FSDR, but here they are again:

      “There are three main reasons why NI is allowed on FSD and FSDR:
      1) some women (not many) want that, and I think it should be their choice. I don’t think anyone should tell informed consenting adults how they should or should not inseminate.
      2) it’s almost impossible to keep NI donors off any group. If they identify themselves as NI donors, it’s easy for women to avoid them.
      3) Health Canada in its lack of wisdom has decided that unless a donor and recipient are married or sexual partners, then semen is a drug and subject to strict regulation. I don’t think they could defend that in court, but it’s not a battle we’re in a position to fight.

      Both FSD and FSDR are very pro-AI, and donors will be removed for suggesting NI to AI-only recipients, or for suggesting that NI is more effective than AI with fresh donations. Most of the donors with several donor children are AI-only.”

      “If two informed consenting adults want to bring a child into the world by having sex, why is it “madness” for them do so?

      If donors and recipients having sex is so dreadful why have you had a link for over four years on your site to the Daily Mail’s story about Lisa Evans, who met her donor through your site, then got pregnant by having sex with him? [this link has now gone]

      If as you say “men MUST donate through AI”, then why does your site continue to allow donors and recipients in Canada, when it also says the following: “Please note that I have been advised that sperm donations in Canada must involve sexual intercourse.”

      (remember that you said this: ” STOP ALLOWING MEN TO ASK FOR SEX – calling it ‘sperm donation’. Its madness- and irresponsible if you own or manage a site that allows it- even if you ‘advise’ people not to do it.”)”

      “You’re the one who has been attacking our site amongst others. It’s a bit like a dating site which restricts membership to people who say they’re against sex before marriage criticising dating sites which don’t make such a distinction. There’s a place for both sites, but I think people should be able to choose, and it would be unrealistic to expect that none of the people on the first site will actually have sex before marriage anyway. I already explained why FSDR allows NI donors in my first post, and there’s not a lot I can add to that. I haven’t been a donor for over ten years btw, and have only one child as a private donor. We would not “lose most of our donors” if NI was banned btw, as over 80% of our donors offer AI.

      “Far more importantly though, if there really is/was a woman on FSDR who has HIV, then I’m not aware of it. Why haven’t you told us about it before? Please send details to moderator@freespermdonorregistry.com
      [no details were ever received]

      “You said this: “I was mortified that Lisa slept with her donor as you know- it took me ages to get the message across again that sex is NOT permitted.”

      It’s not clear from your website that you were “mortified”, and the way you link to the story hardly reinforces the message that sex is not permitted. Your website simply says this:
      “Latest Daily Mail Story ‘I slept with my sperm donor.’
      Lisa Evans found a sperm donor through Free-Sperm-Donations.com and 9 months later her healthy son Elliott was born!”

      As far as I can see, Lisa and her donor were happy enough with what happened, so why do you have a problem with it? Did you ban Lisa’s donor btw? It seems to have been his suggestion that they sleep together.”
      [The link has since been removed, but it was there for over four years]

  2. “Legally things are changing, and it seems (as usual?) the US is the last to follow suit. For example a sperm donor – the biological father- of a child in Australia who has been supporting the child financially and has been recognised as the legal parent until the social and bio mother split, has been replaced by the social mother. That was their arrangement from birth and it has been upheld.”

    My worst fear in family law. I am afraid it is but a matter of time before the US capitulates, as you say. And the fact that people don’t see it as part and parcel of the gay rights advocacy movement is mind boggling to me.

    • Let me make sure I understand this example (this first question is for Emma, really.) Sperm donor is legal parent (because of bio or other factors listed here?) His rights are terminated (is he sort of bumped out) to make room for social mother? Because of agreement? Because of behavior?

      In many states in the US donor would never have rights of legal parent–for instance, law in WA says donor is not father. In other states, donor is father for sure. MA and NY are example. And in yet other states, that agreement probably matters. So I’m not sure if the US is following or leading or if we’ve reached Ki sarita’s worst fear. The problem from my point of view is the potential chaos and uncertainty–it’s not always clear where the cases will be litigated and where they are litigated probably determines which law applies.

  3. I think someone is better off using Facebook to find donors, rather than this website. And if donors want to charge money, that’s fine by me. “Free” services often don’t work.

    • Why would one be better off in a totally unmoderated environment? It seems to me that sites can at least offer some sorts of screening, etc and that this has some value. Sites can poiint people towards the need for legal advice or towards important health considerations that need to be taken into account. Facebook doesn’t give you that. It’s even scarier from my point of view.

      • Well I think Facebook gives one the opportunity to contact more people, and people who have never considered donating. Facebook is a good starting point, because it connects everyone together.

        • The thing that worries me is that many of those people may not really think through what donating sperm might mean. It’s entirely too casual, particularly given the massive legal consequences that could follow.

  4. Maybe it is not surprising that ordinary people can’t figure out the law, when even the Pennsylvania Supreme Court find it difficult. In a majority decision 3-2 they upheld a private sperm donor contract. The majority argued that absent the parties’ agreement the child would not have been born. The minority argued that you can’t by private agreement bargain away a child’s right to support.

    • There’s no question that there is legal chaos out there–in general and in courts. That Pennsylvania rule is not a common one, though it’s a plausible rule. It’s similar to, but in the end different from a rule in Kansas (donor is not father unless agreed in writing that he was). And both are different from MA or WA, which don’t give agreements any force at all. (But WA says donor is not a father while MA says donor is.) You need a very complicated chart to get all the rules and then you need to keep it up to date (because sometimes they change) and this is why I worry.

  5. This is Beth Gardner here. FIrst point in response to Emma – no, we did not find our donor on FSDW. In our journey we opted not to sign up for any paid sites, although we certainly respect anyone’s choice to do that for themselves. We found our first donor on the FSD Yahoo! list that preceded our own site, and our second (and successful) donor through our site.

    In response to this blog post, in short – of COURSE we are concerned about the legal aspects! It’s interesting that people assume if it’s not said in the Newsweek article, then it doesn’t exist. Any adult ought to be aware that the news media focuses on the things that make stories more “dramatic,” so of course they decided to focus on one teeny tiny little part of our story, and leave all the careful and diligent effort that we put in to our decision to the reader’s imagination. The hours that we spent researching state and federal law, the attorney consults, the careful and deliberate selection process with our donor(s) – that is all just too boring to put in a magazine.

    Our website, soon to be renamed to The Known Donor Registry (KDR) – is a result of the extreme amount of time we have spent researching and educating ourselves on this issue. There wasn’t a good resource out there when we were looking; not one single site with the focused purpose of providing information and tools for people to educate themselves, and to help educate each other. The paid sites present a barrier to women who are just starting to look into this; they may not want to pay up front when they aren’t sure they are even going to do it. That’s why we created FSDR, and KDR will expand on that mission even more.

    The connection aspect of FSDR/KDR is what brings the audience in – they come to find a match. But our primary goal is to educate them while they are there, whether that be through our articles or through an active and vibrant community of people. We want them to be absolutely aware of EVERY risk they face, and of everything they can and can not do to mitigate those risks. It’s a lot like sex education – rather than preaching abstinance, we are trying to education people on how to do it as safely as possible, and pointing them to the resources they need to do that whenever possible.

    As much as Emma would like everyone to think that FSDR/KDR promotes donation via sexual intercourse and has been intent on posting this everywhere she can, it’s simply not true. As Mark stated above, one of our core values is encouraging AI over NI at all times. I would not personally be opposed to legislation that failed to recognized a donor/recipient relationship if the donation was made via sex. The big difference between Emma and FSDR is that Mark and I recognize that just because a donor SAYS he only donates via AI doesn’t make it so. We’d rather have the truth be out there, and women aware, than to hide behind a false sense of security by simply erasing the option.

    Also – there are women out there who have ethical issues with AI and are seeking NI. Who am I to say they can’t make that choice? I think they are making a dangerous choice, but I would rather have them on my site, where we provide information and resources to mitigate those risks, than on Craigslist.

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