What Should The Rules Be? Thoughts About Third-Party Reproduction

I’ve been running a couple of discussion threads here–one trying to catalog possible harms from third-party reproduction and one on the role of gender and altruism in the same context.  I’ll assume some familiarity with the content of those posts and the discussion they spurred as I move forward here.    I’m also going to assume for the moment that I’ve generated an adequate list of concerns to be taken into account in establishing a system that uses third-party gametes.    It’s never too late to go back and add more if they come to light, of course. 

I think the various ways you could structure the use of third-party gametes can be laid out along something like a spectrum and the way I am going to start this discussion is by identifying the two ends of the spectrum.   That’s likely all I’ll get to in this post, especially as I am now going to pause for a word about terminology.   (Actually, I only got as far as examining one end of the spectrum today.) 

I’ve referred to use of “third-party gametes” and “third party reproduction”  and I should explain why and what I mean by that.  I mean reproduction that uses gametes from a person who is not going to be a legal parent.  The obvious instances of this is when a couple uses sperm or eggs provided via a bank of some sort.   The couple plans to parent the child, so they are the first and second parties.   The provider of sperm/eggs is a third-party and so it’s “third-party reproduction.”     One thing to note:   the term “third-party” can be a little misleading.  When a single woman uses sperm from a sperm bank to have a child, she’s the first party and the provider of the sperm is a third party and there isn’t any second party.  

Sorry to take so long about this, but I think the term may be helpful.   I’m open to modifying it or discarding it.

Now–the spectrum.  It seems to me that at one end would be rule saying that no third-party reproduction would be permitted.   It’s worth thinking about what that might mean/how it might look.   (Let’s be clear that I’m not endorsing this–just exploring the topic.) 

You could close down all the businesses that provide third-party gametes.   You could also directly criminalize the production of or use of third-party gametes.   (After all, even without sperm banks people engage in low-tech third-party reproduction.)   

But perhaps the most effective step would be to say that as a matter of law there are no third-parties.   What that means, I think, is that you’d say that anyone who provided the gametes is necessarily a legal parent.  A man might still provide sperm for ART but if he did he’d be a legal parent of any resulting child.   This negates the main purpose of third-party reproduction.   A couple would by far less likely use third-party gametes if the end result was that one member of the couple would end up as a legal co-parent with the gamete provider.     A single mother wouldn’t use third-party gametes because in the end she wouldn’t be a single mother–she’d be a c0-parent with the gamete provider.  

Of course you could go down this road anyway and have the gamete provider surrender parental rights after the birth of the child while the partner (if there is one) adopts the child.   But that’s both more complicated and more iffy than current practice.   And some places wouldn’t let the gamete provider surrender parental rights if it left only a single parent.

It also seems to me that if you changed the rules to ensure that the gamete provider is always a parent this would drive people towards use of anonymous providers.   (If no one knows who the provider is, then there is someone out there with parental rights, but no chance they’ll be exercising them in a way that causes trouble.)    I assume this is an unacceptable state of affairs to anyone who wants to do away with use of third-party gametes, so it seems to me you’d also need to bar use of anonymous gametes to prevent people from working around your purpose.

So in sum, at one end of the spectrum you’d have a system with two rules:

  •   If you provide gametes for reproduction then you are a legal parent of any resulting child
  • All gamete providers must be fully identified

That’s it for today.

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37 responses to “What Should The Rules Be? Thoughts About Third-Party Reproduction

  1. “A single mother wouldn’t use third-party gametes because in the end she wouldn’t be a single mother–she’d be a c0-parent with the gamete provider. “

    I do think that I know what you are trying to convey, but technically if she was unmarried she would be a single mother even if the father of her child had 50% custody. Single is her marital status officially. Unoficially its the absense of a romantically exclusive relationship. You meant that she would not be able to raise her offspring absent the participation of the child’s genetic father which is what she preferred not to have the genetic father or his relatives around to interfere with her autonomy to raise their offspring as she sees fit with no external restrictions from him or his family. Is that correct, what I think you were trying to say?

    • I was thinking of a woman who wants to be the only legal and social parent for a child. She doesn’t want to share time or decision making authority with a partner or a non-partner.

      If she has a child and the child has a second legal parent–like the man whose genetic material was required to create the child–then there’s a strong presumption that the second parent gets to spend at least some time with the child and a strong presumption that the second parent gets to participate in the larger decisions of a child’s life–where the child lives and goes to school, whether the child has religious education of any sort and, if so, what religion, that sort of thing.

      Perhaps the British term for this is better–a sole parent. I don’t mean the word “single” to describe her relationship status but rather to indicate the total number of legal parents.

      Sorry not to have been more clear initially.

      • I totally understand you now.

      • “She doesn’t want to share time or decision making authority with a partner or a non-partner. ”

        I don’t see why the law should accomodate a wish like that. That woman sounds like a control freak. Definitely not the norm. In fact most heterosexual women who turn to sperm banks do it as a last resort. They would have much preferred to get pregnant with a partner.

        • Here’s a place where you and I are just going to disagree. I think there are a number of people–women and men– who would like to raise children as a sole parent and are perfectly capable of doing so. From my point of view I’d say more power to them. I don’t suppose it is the norm–assumingy by that you mean typical–but that’s beside the point from my point of view. Whatever the norm is, we shouldn’t all have to match that configuration.

        • I don’t think it’s being a control freak. If a person wants to be a parent but for whatever reason they are single – whether they never met the right person, or are asexual (rare, about 1% of the population), or simply prefer to be single for whatever reason – it seems to me very understandable that they wouldn’t want someone they have no relationship with making important decisions about their child.

          I am considering having a child as a single mother in a few years, for personal reasons I am just not interested in a relationship but I really want to be a mother. I absolutely would want my child to have the option to know who the donor is, which is why I would only use a donor who agreed to have their name released and to be contacted by the child. But I want to be the one that makes the religious, medical, and educational decisions for my child, and I want my child to live with me full time. I wouldn’t want to co-parent with someone that I didn’t know, that may not have the same values as me.

          If a single woman wants to have a child, I don’t see how it is more beneficial to the child for her to sleep with random guys she doesn’t care for until she gets pregnant, and then have the child go back and forth between homes from birth, with two parents who never really had a relationship with each other. I know that I will never marry. so this or being childless are my only options, when I’ve wanted to be a mother my whole life….

          • I don’t disagree with you regarding hetersosexual women who wanted to find partners to have children but have been unsuccessful, such as myself. Quite an unenviable list of crappy choices: sperm donor, having a child with someone incompatible, or childlessness. Not pretty.
            But about the women who simply has no interest in having a relationship (not for sexual reasons). having a child is a lifelong, intense, demanding relationship. Perhaps motherhood is not for them.

            • Actually it is mainly for sexual reasons that I do not wish to have a relationship. I don’t know if I’m actually 100% asexual, but I pretty much have no sex drive. I do not think I have great odds of finding a guy to marry who has no sex drive and still wants to get married and that’s not something I’m willing to endure or compromise on. Nor is it something I am willing to give up a lifelong dream for. Obviously this really is a philosophical question – is it worse to have only one legal parent from birth, or worse not to exist at all? I believe I can give a child a life that is worth living and it’s not like there is some alternative – if not for this, they will never exist, they will never come to me in another way, it’s this or nothing. Do you think most people born from donor sperm would prefer to go back and erase their existence? Because really that’s the alternative. They wouldn’t magically have been born with a known father, they wouldn’t have been born at all. Perhaps some find that preferable, I don’t know. But I doubt the majority would prefer not to exist at all. I also have a cousin born from donor sperm and I don’t think the world would be better if she could not have been born either.

              • No. There is an alternative which is who ever gets you pregnant has to take responsibility for your child. Why would you tolerate less than that for your child? For any child? There are apparently websites where people go to find the person they are going to raise a child with but not be romantically involved with. If such a thing exists why would you not be willing to work out some kind of reasonable custody agreement. Its not like people that have kids when they are married stand such a better chance of getting along for the next 18 years. I know Julie does not like this idea of having a child with someone you don’t know but this is far more in allignment with the child’s supposed rights than this other way. I mean at least look into it.

                “is it worse to have only one legal parent from birth, or worse not to exist at all?” Look I already said I get it and I can see my self thinking that very thing if I were in those shoes even with everything I know and believe I can see the temptation to do that very thing just to not die never having been a mother. But I am not in your shoes at the moment and I can suggest that you start looking at other ways to get yourself pregnant that won’t cost your kid half of everything she enters the world. Don’t kid yourself into thinking this is the same as if a guy just abandoned you, because its not. There is dignity in the fact that children are owed that support even if they never receive a diam of it, the law will garnish his checks if he works, they will take his inheritance if his parents die and leave him a house, if he passes away before your child turns 18 she’d get social security death benefits. If you get pregnant by a donor not only won’t she get them she does not deserve them has no legal right to them. All these DC people have wealthy Doctor fathers that did not raise them as their own but in reality, they are just as much his children biologically as any he raised and we know that biological is all it takes for an order of support to be slapped on a guy and it won’t matter that he did not intend to be a father or that he is married to someone else because the child deserves support from the person that created her. Your child will be told you don’t have the right to his name on your birth certificate because your mother and father agreed he did not have to take care of you if he would just please do her the favor of getting her pregnant. Is it better not to exist? The same two people could have created the same baby without cutting a deal like that. Your saying that your going to sell out this childs rights because you want them to exist for who? For you right? Sure they will love you and you will get what you want. I have not met any people whose fathers donated that did not love the people who raised them. Its sad because that really reinforces the practice that denies them their rights.

                So everything would work out fine for you if you do it. Good luck with that. Just know that there won’t be any way out of that situation for the child. I have only addressed the concrete practicalities of it. Their emotional reaction to not having these things everyone else has could be great for you or it could be hard to manage. Its not as easy as it seams on the surface. If you have time try to find an arragement with someone who wants to have a child but not a relationship. Remember if they are really intollerable you can get orders of protection or have him thrown in jail if he’s nuts or abusive and he will still have to support his kid and she will still be able to inherit her grandparents house some day and she’ll know all her siblings.

                • Can we agree that different things will work for different people. I’d be horrified at the prospect of raising a child with someone I didn’t know awfully well–which is why the stories about people who shop off those websites tend to freak me out. But I suspect this goes back to our disagreement about biology. Biology alone (which is what the picked out guy will have to start with) gets you nothing in my book. I can totally understand wanting to make life simple and do a one parent/one child thing. Granted, it’s a lot of physical work and you don’t get the time off you’d get with shared parenting. But we’re not necessarily talking about parenting in isolation, either. People do have friends who can give them the afternoon/evening off.

              • Again, Rebecca
                First that particular question is one that ticks all my friends off. Its a horrible thing to say to a person, because its basically like saying if you don’t like your lot in life would you rather not exist because its this or nothing. Once they are here they are here.

                They are entitled to half what other people are entitled to – we are clear on that now, correct? Let’s draw a paralell to another group of people that were entitled to half what other people in the same position were entitled to and see how your argument plays out.

                Its 1960 and your a woman with a law degree and your making half what men in the same firm with the same degree are making and that is perfectly legal. Well men have to earn more to support their families etc etc. That is just how much women make. Your treated equally with all other women. Boo hoo for you, your lucky you were able to go to school and get your degree. If your so unhappy being a woman because women don’t earn as much as men and that is just how it is. Its half or nothing at all I mean would you rather be a woman earning half what men make or would you just rather not exist at all?

                You can see how your question would piss them off now. I mean pose it to someone that identifies as DC or someone who was a pawn in their mother’s paternity scam and got their step father named on their birth certificate. Ask the question and then stand back because the responses I have read and heard to that question will burn your eyebrows off and leave you charred. They exist and they have two genetic parents and they deserve to have the same rights as other people. Its not their job to manage the feelings of people who do not exist yet. Its not their problem if some woman does not get to have a baby. Never existing is not the same as being killed from the perspective of living people. The only thing being killed there is possibly the dream of parenthood. But honestly, is it really ok to create a second class of people with fewer rights in order to fullfill some people’s dreams of parenthood? They’d have us all thinking making the donors accountable for their children will cost all these children their lives – no no no it won’t cost any children anything in fact it will ensure that every child born is treated equally. The ones that don’t exist need no protection they are a figment of people’s imagination until there is a life there to protect. I almost feel sorry for people who’ve asked that question because the responses are so visceral. I’m going to go find you some links with responses just so you can see what I am talking about.

                • But there are people in every situation who very unhappy about something in their life. Angry that they were born poor. Angry they were born to parents in a bad relationship. Angry they were born with health problems. And then there are people who are fine with that being their life. I don’t think anyone should be prevented from having a child because the child *might* be angry later on. If that’s the basis to prevent someone from having a child, then couples in certain circumstances should not be allowed to have children either.

                  • If you had the option of having a baby together with say a decent responsible gay or asexual man I’d say go for it, but having attempted that route I’d say its improbable.

                  • I could see myself considering that if I had a male friend in that situation, that I had known for years. But, it does sound improbable to just find one.

              • I feel for you rebecca and wish you luck no matter what you choose. Some people suffer more from fatherlessness, some less (just as some people suffer more from childlessness and some less). Let us hope your child will be one of those who do not suffer.
                Marilyn I agree that the target is equality under the law, the law, not the individual party. individual circumstances vary.
                Also, unlike many women-bashers, I condemn the sperm donors far more than mothers who are good parents to the kid once its born. Perhaps they made a decision to have a child under imperfect ciercumstances, out of a list of pooer choices like I said (control freaks not included)but so do many other people. poverty, poor relationships, medical problems, the list goes on. But they take care of their kids and the sperm donors don’t.

          • Well look Rebecca I can see why you would decide to have a sperm donor father your child if you thought your time was running out and you would never have a baby otherwise. I can step outside my own shoes. I can absolutely see myself wanting to do that and going through with it, even now as passionate as I am against it I can see me compromising my beliefs to become a mother if I were not one already. That’s why I think there needs to be a change in the law or women like me will keep making excuses for compromising their children’s civil liberties.
            The laws that say sperm donors are not the legal fathers of their own offspring essentially create two separate classes of genetic parents,

            The 1st Class of genetic parent has to be named on their offspring’s birth certificate and provide support for their offspring from birth to adulthood.

            The 2nd class of genetic parents don’t have to be named on their children’s birth certificates and don’t have to provide support for their offspring from birth to adulthood.

            Of course, having two classes of genetic parents has resulted in having two classes of genetic children. 2nd class offspring are entitled to half of what 1st class offspring are entitled to. In fact they may very well be entitled to none of what the 1st class offspring are entitled to in instances where both of their genetic parents were gamete providers.

            You know there are many impoverished people in the 1st class who will never receive what they are entitled to from their dead beat fathers. There are also many financially privlidged members of the 2nd class who don’t need financial support from their fathers and have no interest in inheriting from him etc. But there is still a massive violation of public policy that extols the virtue of equal treatment under the law because for this system to continue as it has we must actually be comfortable telling the children of the 2nd class that they don’t deserve the same rights as the children of the 1st class and we are Americans we should just not be comfortable with telling someone they deserve to earn half of what someone else is earning for the same position because their genetic parent was a 2nd class donor and not a 1st class parent.

            You can’t love the wrong out of selling your kids rights out from under them. Having a great relationship with you won’t help them be treated more equally under the law. Julie’s concealment harm is not resolved by telling the child early and being supportive about their genetic curiosity. Its certainly not solved by selecting a willing to be known donor either. Realize that they will still spend 18 years of their life with their genetic father’s identity concealed from them when other people’s genetic fathers are not allowed to be anonymous to avoid their child support obligations by keeping their names off their children’s birth certificates. How is that fair to your child? And knowing who their genetic father is at 18 means that your child spent 18 years out of the loop of communication with his paternal relatives leaving him with half the medical information that others are entitled to have when their genetic relatives are in regular communication with them over the course of their lives. How is that fair to your child? The identity of your child’s siblings may never be revealed so they won’t know who to avoid dating the way the rest of the population does. How is that fair to your child? Should Mother’s be able to waive support obligations of their children’s fathers? Why? How is that fair to your child?

            If 50% of marriages end in divorce then there are a whole lot of people who intended to have children with one another who don’t see eye to eye any more and most of them would probably never want to see one another again and would gladly raise their child on their own without interference of their x spouses if they had the choice, but they don’t have the choice if they are a member of the 1st class of genetic parent. They must continue to support their offspring despite not seeing eye to eye with the other genetic parent of their child. So having a baby with someone that does not have the same values as you is just par for the course in many instances and is not typically a good enough reason to prevent your child from receiving all that he or she is entitled to.

            Just dig on what your doing before you do it and don’t go into it thinking what your doing is fair to the child or that you can make it all better by having enough love or male roll models or honesty and respect. Those things are lovely but they will exext in tandem with the very ugly reality that they are members of a 2nd class with half the rights of other people. The way you raise your child won’t help the fact that they have fewer rights than other people, but it can make it easier to accept that there is nothing they can do about it; some people are just more equal than others

            • To me the difference with the divorced couple is they agreed to be parents together when they married and had children. It was only later on they decided they hated each other and by then they had already been raising their children together, their children knew both as parents, were bonded by both. And presumably both parents wish to continue to be involved in their childrens’ lives, so I don’t think it’s the right of one spouse to veto the other spouse having a relationship with the children they raised together just because they no longer love each other.

              Ultimately I guess I just have a different view of what parenthood is, than you do. I believe everyone who WANTS to should have the right to raise their biological child, which is why I disagree with adoption unless both parents consent to it (which was the original case I came to this site to comment on I believe). I do not believe it is wrong for someone like me to have a child, I do not believe it is wrong for someone like my cousin, who did use donor sperm, to have a child. I don’t believe the world would be a better place if people like my cousin’s child did not exist. I believe that my future child’s life will be worth living, that they will bring something positive and wonderful to this world, that otherwise would not exist at all. To me it is better to have a chance at life, with a mother who wants a child more than anything in the world, than to not exist at all. Honestly I find it a bit insulting that people think my child’s life will be so dreadful that they should be prevented from existing, while people who act irresponsible and sleep with people they don’t even know and have children that aren’t planned or even wanted, well, it would be better if I just did that if I want a baby soooooo badly.

              • I agree with you that everyone should have right to raise their own biological child. I’ll go further than you and say that they have the obligation to do do that.

                Why do you believe that its ok for some biological parents to simply choose not to take care of their children? Do those children deserve both parents support or not? Yes or no. Because if your child does not deserve support from its father neither should any other child. Some children should not be entitled to support from both because both want to support the child, both should have to.

                • All legal parents should have to take care of their children. And generally, a biological parent should be a legal parent, so some guy can’t just run off if his girlfriend gets pregnant and he then decides he doesn’t want a baby, and so a woman can’t decide she doesn’t want to be a mother so the baby will go for adoption whether he likes it or not. But when it is planned from the start that someone else will be raising the child (whether with adoption or egg/sperm donor), then no, I don’t think they should have to pay support because they should not be considered a legal parent.

                  • You think that a genetic parent should not have to support his offspring if the other genetic parent agrees.

                    If the genetic parents are in disagreement about one of them not supporting their offspring, then you think both of them should still have to support their offspring like it or not.

                    So from the standpoint of offspring its far better if their genetic parents disagree, then both genetic parents would have to support them like it or not, be identified, like it or not. They loose half of everything that is their birth right if their genetic parents agree that one of them won’t support them.

                    And what if they agree on the fact that neither of them will support their offspring what then? Shouldn’t these agreements all be in court same as in adoption?

                    Its fine to be an anonymous gamete provider but it is not fine to be an anonymous genetic parent. It would be a good thing to make the law apply equally to all people with offspring – that they must support their offspring or be guilty of abandonment. The alternative is court approved adoption for the protection of the child. Holding people accountable for the health safety and welfare of their offspring does not prevent you from having a genetic child.
                    If you are suggesting that a law that expects people to take care of their offspring somehow prevents you from having a child of your own it does not do that at all. Your personal life is your business. Your free to excercise your reproductive ability finding someone to make a child with is up to you. You should not be legally allowed to contract away the other parent’s obligation.

                  • The focus on financial support is misplaced. In fact parents regularly waive support from the other parent. its not unique to anonymous gamete donors. But no parent should has the right to waive either their own or the other parent-child relationship.
                    Unfortunatley only moneyh can be legislated, not love or care, so what gets talked about is as usual the least important.

              • You have every right to get pregnant from an anonymous donor and I don’t think that right should be restricted. I’m sure the world will be a better place with your child here. And once they are here they deserve to have their father named on their birth certificate and he should have to support the child no matter what fool thing the two of you agreed upon before the baby was even born. I don’t think you or he has the right to turn your children into second class citizens by preventing the child from receiving his support. I think he can be anonymous as a donor but not as a parent and that doctors should not be allowed to vend sperm unless all parties agree to identity disclosure at the time of birth. That any child born to the inseminated woman at any point in the future will have that donor named on the birth certificate unless she proves otherwise. And the donor would simply have to give the child up for step parent adoption and everyone would still get what they wanted. Single women should be allowed to find a person willing to be the other parent who could be like the spouse in a step parent adoption so the donor could give the child up for adoption.

          • Good thoughts to share. thanks.

            It seems to me that there are many reasons why a person–male or female–might elect to be a sole parent. It might seem that two is always better than one–four hands, two heads, all working together–but that is assuming that they are all working together. The reality is that two parent families necessarily include three complicated relationships (parent to parent and each parent to child) instead of just one. Managing all three takes a good deal of time/energy on everyone’s part.

  2. I originally thought medically assisted reproduction was the same as third party reproduction and you corrected me on that once before. It was clear enough to me that the doctor was the third party assisting the the first two parties in reproducing themselves. This I thought was consistent with laws in some states that require medically assisted fertilization for a man to be considered a donor rather than the father of his own offspring.

    So Julie, I have a question. You said this:

    “I’ve referred to use of ”third-party gametes” and “third party reproduction” and I should explain why and what I mean by that. I mean reproduction that uses gametes from a person who is not going to be a legal parent.”

    and this

    The obvious instances of this is when a couple uses sperm or eggs provided via a bank of some sort. The couple plans to parent the child, so they are the first and second parties. The provider of sperm/eggs is a third-party and so it’s “third-party reproduction.”

    and this

    One thing to note: the term “third-party” can be a little misleading. When a single woman uses sperm from a sperm bank to have a child, she’s the first party and the provider of the sperm is a third party and there isn’t any second party.”

    From reading your blog I have learned that there are a variety of arrangements that constitute the body of ART in its entirety but there is one common theme and that is people earn the title of parent by raising children, not by reproducing to create them and not by giving birth to them. I know that you might wince on the last thing I said but there are certain ART arrangements surrogacy and gestational carrying that say that so generally, in ART parenthood begins with performance of duties after the birth of the child not before.
    Your definition of third party reproduction seems to be at odds with the gestalt of ART as I’ve come to understand it. If reproduction is not what makes a person a parent of children in ART arrangements then why would an intended parent imply that they were a party to a reproductive act that according to them does not qualify them for parenthood anyway?

    A donor can’t claim to be a father after the child is born because he won’t be performing the job of raising the child so why is the intended father trying to claim to be a party to reproduction before the child is born if he did not do the job of siring the child?

    Double talk is saying one thing and meaning another. Applying uncommonly understood definitions to commonly used words and terms is double talk. At best, innocent use of double talk when we write or speak, results in people not really understanding what we are trying to convey. This is a real problem with ART terminology; people really struggle to make themselves understood with phrases that sound like they mean one thing when the speaker is really describing another. At its worst double talk is an artful dodgers useful tool in cunning acts of deception. This is a real problem with ART terminology; there will always be some unscrupulous individuals like in the Erickson case, who’ll use the vagueness and opposite meaning nature of these phrases to conceal what they are doing while doing it out in the open where everyone can see.

    So it is clear to say that a woman selected a donor to reproduce with and that fertilization of her egg will be artificially assisted by a member of the medical profession. And it is also clear enough to say that her wife or partner or husband is the other intended parent of the child once born. Parenthood is clearly separated from reproductive acts when one is clear that way and this separation appears consistent with the message that ART proponents want to convey – you don’t need to reproduce in order to be a parent. Well then I say don’t muddy the waters by implying that someone was party to a reproductive act when they weren’t.

  3. I mean dude listen objectively to what you said, “the term “third-party” can be a little misleading. When a single woman uses sperm from a sperm bank to have a child, she’s the first party and the provider of the sperm is a third party and there isn’t any second party.”

    In my interpretation the doctor maintains his roll as the third party regardless of who the two people reproducing are. They could know one another or not know one another, it makes no difference to the third party who assisting them in conceiving offspring together.

    I guess my concern is that the phrase is one that is to make it sound like the people who want to be parents together conceived the child together when in fact that just is not the truth. Its really not true. They wanted to conceive a child together but for whatever reason are unable to do that together so one of them is conceiving a child with someone else and that person is referred to as a donor because they won’t be raising the child they are creating. I am trying to say that as plainly as possible because you know I have opinions about it and I am not using the words I feel like using because they are too loaded. I aknowledge legally that the donor is not considered to be a father or a mother despite the fact that he or she has reproduced. I think its very misleading to make it sound like the intended parent is a party to the reproductive act that occurred prior to the child’s birth. The only thing that definition you gave does is serve as salve for wounded egos but for crying out loud they are getting legal recognition as the parent of another person’s offspring without having to jump through the normal legal hoops of adoption the least they could do is leave the claims of reproduction to those that actually did it.

    • I actually do not mean to convey that the IPs engaged in a reproductive act that created the child. I think they idea is that they caused the things to happen. I will try to watch out for this.

      About the third-party thing: Imagine a single woman who wants to be the sole legal parent. She goes to a male friend who agrees to provide sperm and who agrees that he doesn’t want to be a legal parent. She can self-inseminate at home with no medical person anywhere for miles around. (It’s not technically difficult to get the sperm or to place it in the correct location.) I think this ought to count as third-party reproduction–and I’d say the man is the third-party.

      Just for the record–in some states (WA and CA among them) the man in the above hypo is not a legal father. In other states, he is a father because there is no involvement with a medical professional. I think it is hard to explain why the presence of a doctor should make that kind of difference and I think that’s why the more recently enacted laws tend to follow the WA/CA model. Those states draw the line between intercourse (in which case man is father) and anything other than intercourse (in which case he is not.)

      • If we need to suspend our understanding of math and physics to make the donor a third party to the conception of his offspring its probably time to explore other ways of preventing him from being considered the legal father of his offspring.

        A woman who obtains semen from a man and then puts it into her vagina is artificially inseminating herself and there is no third party involvement facilitating the artificial insemination for the woman. I think that could easily stand on its own merits without requiring people to forget that one and one equals two and not three. Because really how does calling the donor a third party further your legal argument? Does he have to be the third in order not to be a legal father or does he have to do some other thing and being first second or third is irrelevant for the purpose of establishing the other thing whatever that may be.

        So I say that there should be no problem in saying the insemination was artificial and therefore the man qualifies as a donor and should not be considered the legal father of his offspring, The problem with my argument is the problem with yours as well, we are lacking a witness to the artificial nature of the insemination we are lacking third party verification that this in fact was the arrangement. So I think that is probably the way the whole third party thing operates legally right? You have two people who have offspring together and they are asking us to believe that he did not get her pregnant in the normal course of things and there is nothing we can do to know for sure. The best we can hope for is a third party statement that they both agree with right?

        • I’m not wedded to “third-party reproduction” as a term, but I think it would be helpful to have some term that describes the category of things i’m working with and though I see your point about the unnatural meaning I am giving “third” I don’t have another term at hand.

          All the terms around are flawed. AI used to stand for “artificial insemination’ but people came to see that it wasn’t really actually artifical, so then it became “assisted insemination.” But assisted by who? There isn’t any assistant in my little hypo above–it’s just two people.

          So I guess I could go back to square one: What shall I call the collection of situations under which a person provide gametes for the purpose of helping some other people or person create a child with the full understanding that the gamete provider will not be a legal parent? That’s what I’ve tried to use “third-party reproduction” to cover and if I scrap that then I need something else to describe it. I’m not persuaded that AI is any more accurate.

          • the reason it is so hard to come up with a term that covers all is because its an entirely abitrarily created classification.

            • I’m not sure what you mean by “arbitrarily created.” It is a group of people/families I want to talk about. I think it is a group that has significant things in common (although obviously it isn’t a uniform group.) (What they all have in common is what I described above–there’s a person who is electing to provide gametes to facilitate the creation of a child and everyone agrees that this person will not have the role of parent.)

              Maybe you mean to suggest that the commonality isn’t a significant one, and so there’s really no group there at all. But for purposes of legal treatment, i think the grouping is at least worth thinking about.

              • I deal with third party direction all the time in construction contract language. The third party is anyone not party to the contract between the GC and Owner or Us and the owner. Your right the owner could have many different agents, not party to our contract and we’d refer to them as a third party – in whatever that particular exchange dispute or suit was over. Huh. Well I’m use to that. But I need to think about why it does not confuse me in contract administration.

          • then I would say commit to speaking clearly and be wordy rather than use terminology that really does not describe what your thinking. Its particularly problematic in the baby raising making world that nobody speaks plainly its like we are all using catch phrases for product marketing its like the movie idiocracy

            • So you mean use the long description each time? I might try it out. You’re right about the value of accuracy in speech.

              This is really tangential, but I teach civil procedure and in that context, there’s an area of law called “third-party practice.” I just realized that in that context what we call ‘third-parties” are sometimes actually fourth or fifth or sixth parties. “Third party” is a term of art, premised on the hypothetical two person lawsuit rather than an actual description of the number of parties that precede them. I suspect that my familiarity with that usage led me to (perhaps too readily) accept “third party” reproduction as a term of art without a firm numerical meaning.

              This also makes me wonder if I could think of a name that isn’t built around the number. I guess I’d still like something shorter if I can come up with something that isn’t either misleading or confusing.

  4. I want to make sure that I’ve been clear about what I might like the law to be vs. what the law around ART typically is.

    In order to facilitate ART the law has a concept of “intended parent,” which is abbreviated as “IP.” For ART to work, you need a rule that says the legal parents are the intended parents. Then, so long as intent is clear (and let’s just assume it is for the moment) you get all the desired results. Under this approach, if a woman is pregnant with an egg that’s isn’t her own genetic material the way you tell if she is a surrogate or a prospective mother using third-party gametes is by looking to intent. It’s not about the genetics and it’s not about pregnancy/birth. I think it is fair to say that without an idea like IPs ART doesn’t work out right. (You’ll note that it explains why the gamete provider isn’t a parent (no intention) but the gamete recipient is a parent.)

    I’m not a total fan of this concept. I’ve said this before in much more detail elsewhere, but I prefer function–how have you actually acted. Lots of time intention and function do match up–which is to say that I intend to do something and then actually do it. But sometimes they don’t and when they don’t we have to choose between them. I choose function over intention. If you meant to do something but didn’t actually do it, what matters to me is that you didn’t do it. (And the reverse–maybe you said you weren’t going to do something but then you actually did it–what matters to me is that you did it.)

    I won’t go further into this just here or it will get way too long, but it does need to be clear that ART generally uses intent as its test. I can see that I’ve created some confusion here in the past, for which I apologize. I’m not sure if I’ve resolved that confusion or even helped. I think you raise an interesting question about who the third-party is, and I haven’t dealt with that in this reply. That’s not because I’m unwilling, but because I wanted to clear up the intent point first. Can get to the third-party question next.

    • I would also agree with that formulation. But when the intention aspect falls apart early on, before much of the action gets done, it gets sticky trying to determine who is the one who is SUPPOSED to do it.
      This is my formulation:
      Default: Genetic parent
      Secondary choice: Gestational Carrier
      Third: Commisioning Party, but must complete legal adoption

  5. ” If you meant to do something but didn’t actually do it, what matters to me is that you didn’t do it. (And the reverse–maybe you said you weren’t going to do something but then you actually did it–what matters to me is that you did it.)”

    I love this sentence and I have a vision of myself using it in some moral life lesson speech for my daughter some day soon. It has a little something extra than that old saying “the path to hell is paved with good intentions” can’t put my finger on it.

    • Yeah, I always think of my daughter’s frequently expressed intention to clean her room, which is worth pretty much nothing if the room doesn’t actually get cleaned. And then last night, she never said she was going to clean her room but she did in fact clean it. Full marks for that.

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