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?