Trying to Think About What Is In The Middle

In the last week’s I’ve put up two posts about the ends of the spectrum of approaches to use of third-party gametes.   It’s time to think about the middle ground.

First a recap:   At one end of the spectrum of approaches would be a place where you essentially barred the use of third-party gametes.   (You’d do that by having the law recognize the gamete provider as a legal parent, which would effectively mean there could be no third-party provider.  You probably ought to go read the post to see what I mean here.)   At the other end you might have something akin to what you would find now in a number of states–fairly unrestricted use of third-party gametes as people see fit.   The question really is what might be in the middle.

To be clear, you do not have to seek middle ground here.   I’m sure some people are satisfied with what exists today and some would be satisfied to have no use of third-party gametes at all.   I’m not suggesting compromise simply for the sake of compromise.

I come at this as a person who generally wants third-party gametes to be available.   I support the sorts of families (single mother families and lesbian families) that generally depend on the use of third-party gametes.

At the same time, I think the current relatively unregulated system has to change.   There are mounting concerns around issues like the number of offspring created by any one provider and genetically heritable diseases.   The voices of those who identify themselves as donor-conceived call for change to address harms they have identified.   Developments in DNA testing make promises of anonymity increasingly untenable.

The question is whether there is anything that might sufficiently address these sorts of concerns (in whole or in part) while maintaining access to third-party gametes.    Obviously different people will answer this differently and I presume to speak for no one but myself.

With all this in mind, my first point is that a gamete provider is not a legal parent.    As I wrote in the first of the two linked posts above, a rule that the provider is a legal parent essentially abolishes use of third-party gametes in reproduction.

Now saying that the gamete provider is not a legal parent is not the same as saying that the gamete provider has neither rights nor obligations with regard to the child.   Articulating specific rights/obligations that come with providing gametes might be one way to define a middle ground between the two ends above.  It’s not something the current legal structure really allows, but that’s neither here nor there.  This is, after all, an exercise in creative thinking.   Why be bound by mundane reality?    I’d like to think about a set of obligations (and perhaps rights) that would flow from being a sperm donor.

As a second point (and working in from the other side of the spectrum) I’d say that it might be time to step away from anonymity.  Part of this is just practical–with ready access to DNA testing and the web, it is harder and harder to promise anonymity.  And part of this is that anonymity may well bring with it a host of problems.

For instance, if a man believes he will be anonymous and never be contacted by his offspring, he may be more likely to provide sperm repeatedly to multiple sperm banks.    (It’s also difficult to prevent this as it’s hard to track someone who has been promised anonymity.)  If instead he is aware that he will not be anonymous he may actually contemplate the prospect of being contacted by dozens of offspring and may decide this isn’t what he wants.   Thus, he might not be such a frequent provider.   (It also might be easier to track and limit the use of his sperm.)

I know that people worry that ending anonymity would sharply reduce the number of men willing to provide sperm.   I will think about that in my next post.

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