Who Gets the Sperm And (Of Course) Why?

I’ve just finished reading through comments about the recent posts about the pricing of eggs (and I suppose more generally, the pricing of gametes).   Some of the comments have left me with things to think about, so I’ll come back to this topic.   But in the meantime I’ve run across a question that’s interesting in its own right.

Suppose a lesbian couple buys some sperm in order to start a family.   Each woman uses some of the sperm and conceives a child.  Two children are born–one to each of the women.   Some of the sperm remains.

Now suppose the two women split up and cannot agree about what to do with the remaining sperm.   How does a court think about that?   Which of the very few facts I’ve recited are important and what more do you need to know? 

I’d start by observing that the sperm is property.   I don’t see what else it can be besides property and it doesn’t diminish its unique value to say that it is property.  A beloved pet–while totally unique and irreplaceable–is property.  Ditto a family heirloom.   There simply isn’t another category for these things, though disposition of them may turn on their unique nature.

Now one thing you might say about sperm is that (assuming there is a bit of it) it could be shared.  But if that was an acceptable outcome, the parties would agree to it and since the hypothetical tells you they don’t agree, they aren’t willing to share.   What that means is that each woman wants the sperm and wants the other woman not to have it.

Here’s the main question–does it matter what they each want it for?   What I mean is if I tell you that each woman wants it so that she can conceive another child who would be a full genetic sibling to the child she already gave birth to would that matter to you?  Suppose one woman wanted that while the other woman wanted to destroy the sperm–because she did not want her child to have a genetic half-sibling in her ex-partner’s family?   (I suppose I should acknowledge my assumption that each woman here is going to continue to raise the child she gave birth to, but that assumption, too, could be varied.)

Of course, either woman can certainly go out and get more sperm to conceive another child with–and given my general unwillingness to amplify the importance of genetics, this is an important observation to me.  If one woman  wants to have more children, she can do so without the sperm.   And any child she gives birth to will (I’ll assume) be genetically related (via her) to the child she already has.   This makes me think her claim to the sperm in question isn’t all that strong.

But the objection of the second woman is also rooted in some sense of the importance of genetics.  After all, why does she care whether her ex uses this sperm or some other sperm?

There are a whole series of frozen embryo cases–cases where a man and a woman (all the ones I know happen to feature a man and a woman) separate and disagree over the disposition of frozen embryos–usually created with their own genetic material.   In general, those cases are resolved in favor of the person who does not wish to procreate–the one who doesn’t want them used.    Do those cases shed any light on this case, though, where the material in question (the sperm) doesn’t come from either of the women?

Just something to think about.

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6 responses to “Who Gets the Sperm And (Of Course) Why?

  1. What if their private agreement with a friend who donated included a clause where his sperm was only to be used by them jointly to ensure that his offspring had two legally obligated parents at birth otherwise he’d sue to establish paternity?

    • An agreement in advance would be a great thing. I would expect a court to enforce such an agreement–I don’t think that’s too difficult a legal question. This would often resolve the frozen embryo cases, too. But alas, people so rarely contemplate the possibility that their unions will not last that agreements like that are infrequent. But it’s a great idea.

  2. the situation is not all that unique; what about a house? say two members of a couple were joint owners of a house; now they both want to continue living in it. How would that be decided?

    Regarding embryos I agree with that ruling that agrees with the person who does NOT want to reproduce, seems that nobody should be able to force someone to reproduce against their will.

    Regarding sperm though, I don’t believe sperm banks generally sell sperm to more than one party at a time, and the recipient has to sign that the sperm is for her personal use only not to be transferred to someone else, or some such. some of the banks post their forms on line.

    • About the house point–you’re quite right. Judges face very difficult distribution decisions with all kinds of unique property all the time. They do their best, I guess. And in some ways this is like this. Is it also different, though? Does the fact that the item in question is sperm–which does have some special qualities–mean that different factors should be considered. (One solution to the house problem is sometimes to sell it off and split the proceeds–but that wouldn’t make much sense here.)

      As to who owns them–when people who have been in a legally recognized relationship (marriage or domestic partnership or whatever) separate, property (and debts) are divided. Sometimes it doesn’t matter who actually bought the thing or whose name is on the title. If it was acquired during the relationship and/or for the benefit of the joint endeavor, it may be deemed subject to division. Views on this vary state to state, but I would guess that in most places sperm that was acquried so that the parties could jointly raise chlidren would be subject to distribution no matter who actually is seen to hvae bought it from the sperm bank’s point of view. But you’ve raised a good question–now I’m curious about how that transaction is structured.

      • Perhaps this is where the medical aspect comes into the picture. Since the sperm bank has approved the individual and not the couple, based on certification from a physician. And they also do somewhat attempt to crudely track the outcome of the transaction. My guess is that based on this, a court might uphold the non-transferrability of the sperm. Although perhaps the user might have to pay the other half the purchase price of the sperm.
        My guess is the banks never had in mind it might be the subject of a marital property distribution- in heterosexual couples it would be hard to imagine the husband fighting for ownership of some other guy’s sperm. Although I suppose it could happen.

  3. good point

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