Sperm As Property

Here’s a recent story from Canada that is completely consistent with the view that sperm is property.   It may be a bit off the current topic(s?) of discussion, but I think it is worth a quick comment.

A lesbian couple living in British Columbia broke up in 2006.  They agreed to divide all their property but forgot about the 13 straws of sperm stored in a fertility clinic.   They had used the sperm to conceive two children–each woman having given birth to one of them.

And there things sat until 2009 when one of the women (JCM) wanted to have another child with her new spouse.  (I take it that the new spouse was also female.)   JCM asked her former partner, ANA, if she could use the sperm.   I think she wanted to have a child who was a full genetic sibling to her first child although it is possible that the new spouse was going to become pregnant and so a sibling conceived with the sperm would be one-half genetically related.

In any event ANA said no.  She preferred the sperm be destroyed.   The case went to court and the story here is that Justice Loryl Russell issued what is really a perfectly ordinary marital property decision.   Of the thirteen straws, each woman gets six and the seventh (if it cannot be divided) goes to JCM who must pay ANA 1/2 the value of that straw ($125).  Presumably ANA is free to destroy her half of the sperm but, more importantly, JCM is free to use her half.

The case actually makes an interesting contrast to what is a more common separation issue–the disposition of frozen embryos.    I’m not sure I’ve written about this before.  (I’ve just looked over the things that turn up when I search “frozen embryos” and I don’t see it, anyway.)

The most common fact patterns is that husband and wife create embryos for IVF and then split up.   What happens to the embryos if they do not agree?   The thing is, in the embryos the genetic material of the husband and that of the wife are inextricably combined.   If one wants to use them, the other will become a genetic parent.

This is quite different.   The genetic material didn’t come from either woman and neither will be a genetic parent as a result of its use.  But each already has a child who will be genetically related to any child conceived with the sperm.

From my point of view, I don’t see what else the court can do but treat this as property.   The law is actually pretty limited in its categories.  In general things are either property or people.  This isn’t people, so it must be property.   And why not divide it?   Why would either woman have a superior claim?


36 responses to “Sperm As Property

  1. Here is the interesting thing about genes being treated as property – its still him that will fertilize some woman’s egg and it’s still him that ends up reproducing with someone and its still him that winds up having offspring, being a biological father and its still him that ends up altering his family tree for ever by adding a person to the mix that his other relatives should not date or get too chummy with. And all of that will occur whether or not he ever even intended to donate his sperm – he may simply have banked his own stuff for his own use later on in life but it will not change the fact that its him that does all of that stuff his body is operating to change the universe whether he likes it or not – its probably a good idea that human males are built the way they are with a spigot they can turn off or redirect so that they are somewhat cognizant of whose tank they’re filling.
    These women are under the assumption that the sperm they purchased actually came from a man who made a decision to produce at least some of his offspring with strangers who signed a release form agreeing that he would not take any responsibility for his offspring once they were born. If they were told the truth and that is in fact the case then not only is this man doing all the stuff I listed above like getting someone pregnant and becoming a biological father he is actually doing that deliberately – as in, it won’t come as a surprise to him if these women’s offspring go knock on the guys door in 20 years. He will know that he chose to get their mother pregnant in an effort to produce his offspring. Its not like he will be able to turn to a doctor or clinic and say “how could you have allowed this to happen” because he allowed it to happen.
    So this brings me to the fact that there is a man out there exercising his reproductive freedom – I would not say that he’s no longer in control over his reproductive acts because in the long run it was his choice to reproduce with as many random women as possible; if that is not what he wanted then he would not have donated his sperm for reproductive endeavors. He is there with these women in this abstract way like a boyfriend in a box and they are arguing over who gets to keep the guy who was willing to make babies with either one of them whenever they wanted and who agreed never to to seek custody or visitation with their offspring. He is their ideal guy and and there is plenty of him to go around and so they are going to simply share him as they did before when they each had a child by him. Which might be fine if he still had the reproductive freedom to change his mind and say no I don’t want to do this anymore but he’s sold his right to say no. He is frozen in time at the moment he said yes even though time has passed. They own him, not just them but probably many people own him and he has lost that ability to put a stop to his own body’s reproduction if he wants.
    Its as if putting it in the cup fertilized all the eggs it will ever fertilize all at once at that very moment even though it will occur over a span of maybe 15 years or more. His “yes” at that moment which normally gets only one female pregnant is a yes over and over again. There must be some parallel situation elsewhere in law. Its my understanding that one of the elements of a contract is the ability for either party to cancel the contract, to get out of it. That there is no such thing as a permanent and binding contract. Its my understanding that you have to allow people to change their minds even if they have to pay a penalty for it or its like signing a contract with the devil. So where exactly is a sperm donor’s ability to cancel his contract so he can stop reproducing? If he has tethered himself to endlessly reproduce with no way out shouldn’t he be able to change his mind? I mean like a contract to provide anyone with services if you want to stop providing those services you can your not enslaved and forced to do something you don’t want to do for ever you pay a penalty wrap up your relationship and go home. Otherwise its like someone owns you. Do they own him and his right to choose?
    I think we make a mistake by separating the person from their genes when we speak I understand its more comfortable for people because of their romantic situations but there is something bigger than hurt feelings to consider here and that is whether we are respecting the freedom of human beings with these property laws.

    • You’ve got a lot going on here and I want to agree with some things and not with others.

      First off, the sperm is not the person. There’s an obvious connection between the two–he produced the sperm, the sperm carries his genetic code, etc. Which brings me to the first string of things you have here. The first “it’s still” doesn’t seem right to me. It isn’t the sperm provider who will fertilze the woman’s egg. It’s his sperm. And it will be done by some technician, I suppose. I also wouldn’t say (but I know you do) that the sperm provider reproduces with the woman who uses the sperm. I know we’ve been over this, so sorry for repeating. On the other hand, I do think he–the person–winds up having offspring.

      I suppose I’m having trouble with this list because it seems to me (from my point of view) that some of these are things about the person and some are things about the sperm and since I do not equate the sperm and the person I have to pick through the list going no, no, yes, etc.

      I realize that you’re consistently concerned with the possiblity that men don’t mean their sperm to be used, but there’s no hint of that happening here. Many men do actually intend to be providing sperm for others to use. I am going to assume that is what happened here because 1) no one has suggested otherwise and 2) I don’t think the problem is endemic. In fact, I think it is quite rare. Good sperm banks have many safeguards in place. So while we can talk about that another time, it really isn’t what I want to focus on now. (I suppose if it of sufficient concern you can say it is always present in every case. In which case we can note our disagreement and move on to the rest of the substance.)

      I think your comment about the boyfriend in the box is rather offbase and somewhat insensitive. Neither of these women, as far as I can tell, has any interest in a boyfriend. The sperm is not a substitute for a human relationship with another person. It’s a means to an end–which I know bothers you, but still, that’s what they are using it for.

      Perhaps you would agree if that if sperm were simply property than this decision would be pretty obvious. BUt of cousre, there are reasons why we might not want to think of sperm as property. You could think of it as something else because of it’s potential to be used to create life. The question is, then, what is it? It’s not a person–I’m feel pretty strongly about that.

      The thing that seems to me to be odd about splitting it is that they weren’t really fighting over who got it. One of them wanted to use it and the other one didn’t want her to use it. The second woman didn’t want to use it herself. So perhaps the framing is wrong.

      I think you are mistaken about contracts. If I sell you a painting and change my mind about the deal three years later, I’m stuck. I suppose I can come and try it back–but that’s a new contract, not the old one. The old one is done and final and it’s over. That’s what happens here. A man parts with his sperm and it is no longer his. That’s okay with me.

      • So a child is born are you really trying to say that there is not a human couple of people (two) who have reproduced themselves to create a child.

        Who reproduced ?
        A male and a female. Not sperm and an egg, those did not reproduce to make more sperm nor more eggs. The people reproduced to create more people. Your very cought up in the romance and emotion of their respective relationships with others. I’m over here grounded in boring unromantic reality. Could you visit me here just for a second? I’m jaded from crappy relationships alright? We just have to agree that in fact its a man who is reproducing and not the sperm. If we could. I think you can if you just have faith that these wonderful relationships can survive even when they acknowledged they have not reproduced together but one has reproduced with someone else. Has nothing to do with raising the child just talking about the service the reproductive service offered by the donor – sperm is just a function of that service.

        • I think it is a good question and it reminds me of the slipperiness of language. I actually do not think that I would say that the man and woman who produced the gametes reproduced. I might say that they facilitated reproduction. I would surely say that their gametes were used for reproduction.

          But this is just my usage, I think. Is there a common usage? There might be scientific usage, but I don’t know enough about that.

          It’s been a long time since I’ve been called romantic. I’m not sure I see why I’m that in this instance, though.

          Maybe what this demonstrates is that we really think about this very differently–so differently that every step of the process seems different. FOr me, once the gamete provider has given up the gamete, that person’s role is done. I don’t think that person does anything else in the process. And that’s why, I think, I bridle at saying that the gamete donor reproduces at some later point when the gamete is done. I think for you (and of course you are not alone here–many agree with you) the gamete retains a significant link to the donor and so action taken on/with the gamete is action of (?) the donor somehow. Really strikingly different views.

          • Yes but if a person has offspring that person has reproduced. Pretend you know nothing about how the person got to the point that they have offspring. Pretend that you don’t know if they are raising their offspring or not you just have the scientific facts in front of you. You don’t know who the person is in love with or whether or not anyone did the deed in a dish or a bed.

            Just tell me has the person with offspring reproduced or not. You can’t say has been because now your assuming someone had a hand in it – saying that a person has reproduced him or herself does not even imply that they knew anything about it does not imply anything at all.

            The generic non-inflamitory statement that is always going to be true no matter what else has gone on is that a person with offspring has reproduced.

            If I could just get you to that point….I won’t even ask that you get into the fact that the other thing that will always be a true statement for a person with offspring is that they reproduced in conjunction with another person. Not going to hope you’ll say that. But just will you pleas pretty please say that people with offspring have reproduced themselves – they have now got decendents they reproduced. If you start saying that someone else reproduced them its like the other person owns their body.

            The people that control the sperm don’t just control the sperm here they are having him reproduce himself but its him that has to do that. If he were only giving sperm and it were all they had use of the sperm would make more sperm and not more people it would not result in a reproduction of him running around.

            People reproduce through the use of their gametes, does not matter who uses his gametes its still him whose body reproduces.

            oi vey.

            • I really am having trouble with the language. (I also don’t understand the beginning of the second paragraph here–there’s a word left out in the second sentence maybe?) I don’t think this is language I generally use, so it’s not like I can think about what I’ve said in the past. I have to think about what I would say and of course, I’m influencing the outcome of the experiment, if you see what I mean.

              So I know you won’t like this, but I think if someone said to me “he reproduced” I would think he participated in an act of reproduction and that would not mean to me that he provided sperm for someone else to use to create a child that someone else would raise without him. I really do not think I would.

              It may be true that if you asked a biologist you would get a different answer (and maybe we should try), and I am wishing know I understood grammer and the vocabulary of grammer better. I’d certainly say his sperm was used for reproduction. But to me there is something in the active verb “to reproduce” that requires more personal involvment that simply providing the raw materials.

              Maybe that means I shouldn’t go along with calling the kids who result his offspring–but that’s a pretty readily understood term and it’s worked well for us–facilitating communication, I mean–so I don’t want to back-away from that.

              I really have lost sight of why this point of language is so important. Does it reveal something beyond what we already know we disagree about?

              And if we’re going to keep at this, can you tell me when he reproduced in your thinking? Maybe this would help. Did he reproduce when he gave the lab his sperm? When he produced the sperm? When the sperm was used in the doctor’s office (or when it reached the egg)? I’d rule out the first two entirely, which leaves me with the third. And I cannot say that he reproduced there in the doctor’s office (or when sperm met egg) if he was across the country having nothing to do with the activity, etc. That sort of gets at my problem with the language.

              • “I’d certainly say his sperm was used for reproduction.”

                It was used for whose reproduction?

                Do they end up reproducing or does he?

                Do they both end up reproducing?

                • I’m really feeling like I need the vocabulary of grammer here and as soon as I am home I’m going to find someone who can help me out with this. Imagine a man who provides sperm and then dies. Two years later his sperm is used to fertilze an egg. He’s dead and thus, to my mind, he can no longer “do” anything. Thus I cannot say he reproduced after he died. And he didn’t reproduce before he died, either. He did set things up so his sperm could be used for reproduction.

                  It seems to me that my underlying assumption is about how we use the verb “to reproduce” and how it has to be attached to a person. But I also think we are at the point where maybe we just need to agree to disagree. We both think what we think here, right?

                  • No I don’t think we are at the point where we need to agree to disagree at all. Not one bit. You can say drop it and I think that is what you are doing but it is a scientifically indisputable fact and there are no other words or terms or ways it can possibly be said other than “He reproduced after his death” Its his body that was reproduced if someone else had a hand in it it was him ultimately who reproduced. When a woman reproduces she becomes a mother, her mother becomes a grandmother despite having done not a gd damn thing. Her mother’s mother becomes a great grandmother and her mother becomes a great great grandmother even though she may have been dead for 50 years she will take on a new roll the day her great great granddaughter is born. How can you not be grasping this very simple concept. I think you do grasp it but you don’t want to. There are some things you do and become by virtue of simply being a link in the chain. You will always be someone’s daughter even after your dead and you needn’t do anything more than exist. So reproducing is just one of those things you cannot escape it if your decedents are being born your body is reproducing itself. Its check mate got your queen there is no place to go here. No other way to describe it. We are immortal this way in a sense. Which is why being in control of our own bodies while we are alive is very likely a good thing for posterity sake.

                  • I’m not sure I have anything to add, except that it is fairly clear that we do not use language in the same way. Since we know that and knew it before, I’m not sure how much more there is to learn here. I guess as a matter of usage if I said a “X reproduced” (which I don’t think I’ve ever said) I think it means that X did something. Like “X cooked dinner” or “X ate.” Of course, X cannot cook dinner or eat after X is dead. In the same way I would say that X cannot reproduce after X is dead. X’s cells can still be used for reproduction but at that point, someone else is doing it. I do not deny that the child created using X’s gametes is a genetic descendant. It’s really more a question of who gets the action assigned.

                    Where X donates sperm for use in ART I think X has demonstrated a willingness to have his gametes used for ART which means he’s demonstrated a willingness to have his gametes used for reproduction. But when they are used I just don’t think of it as X reproducing. I also don’t think that X is being reproduced–because the resulting child isn’t a reproduction of X. I would say that someone else is reproducing using X’s gametes.

                    I think I see why you want to use the language differently. And I’m sure there are other people who use it as you do. I think for you the connection between X and X’s gametes is tighter and more permanent–if the gametes are used X is reproducing, even if no actions of X are involved at that point and even if X is dead. I think we understand each other (or at least, I think I understand you.) And I think that is the best we can do here–we are not going to agree.

                  • OK one more just humor me you said something new and enticing. Your right here anyway on line so:
                    “I would say that someone else is reproducing using X’s gametes.”
                    One more time someone else is reproducing whose body are they reproducing, theirs? Do you think the living person has reproduced their own body by using someone else’s genes? They have reproduced another human being’s body though right? A specific human being’s body was reproduced through their desire or handy work but it is his body – the body of our dead man that is being or was reproduced by our living person that wants to raise the kid. You are not suggesting that somehow possessing or buying the gene of the dead man it somehow becomes theirs in terms of their body that they then reproduce. You do still aknowlege that it is the genes of the dead person being reproduced in the body of the new person which is the dead man’s offspring and not the offspring of the person who bought the dead guys genes.

                    I just need to understand what you are saying when you say ” I would say that someone else is reproducing using X’s gametes” Who is reproduced, genetically speaking of the two people the living person and the dead person whose genes will be reproduced – whose offspring do you think the child will be if its not the dead person whose genes get reproduced. I am thinking of like a Doctor Frankenstein thing where the doctor takes other people’s bodies to produce a son for himself although that analogy falls apart on so many levels. “someone else is reproducing using X’s gamets” But Julie you make it sound as if someone else was able to reproduce themselves by using x’s gamets like they infused their dna into his sperm and their body not his will reproduce. Is it your intent to make it sound like the person who has possession of the gametes was able to achieve the goal of reporducing their own body? Are you wanting them to seem as if they were able to achieve personal genetic reproduction? If so why? I thought reproducing and all that genetic stuff was irrellevent to you personally, that raising the child is what makes a person a parent. Why are you investing energy into trying to make it seem like the donor does not reproduce when biologically its his body that duplicates itself in the body of the offspring not the person who ends up raising the child not the intended parent.

                    Right now it seems to me that your holding some opinions that are in conflict with one another. I thought I was clear on the fact that you thought reproducing did not make a person a parent which seems to me that you’d at least give people credit for their very non parental biological reproductive actions. Your venturing into a line of thought that is surprising given the fact that raising the child is what is critical to you. If you have to raise a child to earn the title of legal parent should’nt a person have to genetically reproduce in order to be considered a genetic parent. Are you rejecting the scientific definition of parent as well now along with scientific definitions of reproduction? Is this a linguistic experiment on your part this is a guinnipig thing am I just really your most gullible subject. If your having fun at my expense I’m actually smiling about that. But seriously – where are you going with this departure from logic?

                  • I actually wrote that as I was dashing out so I know it has taken forever to get back to this. I suspect I have not been consistent over time–I’ve had a week to think about how I use the word “reproduce.” But I still think there are some things I’m unwilling to say. You may be right to suggest that this is mindless or irrational resistance on my part and perhaps it speaks to some deeper issues about consistency. But I think it also has to do with language.

                    So for example, I do not think a genetically related child is a reproduction of the parent. As I think you have suggested in the past, a clone would be a reproduction of the parent. But a child is the result of a combination of DNA from two sources and so is not a reproduction of either source. Can we agree on that? What that means is I won’t go with the statement “they have reproduced another human being’s body.”

                    Perhaps this offers a different angle at the question. It does seem odd to me that we talk about reproduction but no matter who does it, you do not reproduce an already existing human being. You produce someone new and different using materials from existing people. (You might not want that “you” in there–but the you could be the gamete provider I suppose?)

                    So here is my only slightly new insight, born of a week of consideration–no matter who engages in reproduction–no matter who the active party in reproduction, the resulting person isn’t actually a reproduction of anyone. Thus, we could probably agree on describing the various roles (X provides sperm, Y is the lab tech who does the deed, Z is doctor, P is the person paying the doctor, planning to parent) without using the word “reproduce.” And we can agree on the result–a child created by combining gametes from X and someone else’s gametes. And then the question is can we agree that this child is not a reproduction at all–not of anyone. And in that sense, no one is reproduced and no one is reproducing himself or anyone else.

                    Would it be better just to drop the word “reproduce” since I cannot say that I can understand it to have a fixed meaning? Isn’t it just making trouble for us without advancing mutual comprehension? Can we try to do without it and see if what we agree on?

                  • I think you’d like it to be like being cloned where you are not actually reproducing but are in fact being duplicated. totally different. totally different

                  • I’m not sure I understand what why you think I’d like to be like being cloned, but at least I do agree that being cloned is being duplicated.

                  • Your clone would be your younger identitcal twin sister and then you have not reproduced

                  • Is a clone the same as an identical twin? Hadn’t thought about that–I do see the parallel–the single fertilzed egg that divides? Isn’t cloning akin to asexual reproduction, though? In which case cloning is reproducing? I really do not know, but I thought that was the usage. A bit far afield, though.

                  • your clone makes your mom and dad rueproduce

                  • Okay, here’s where we run into trouble again. Here’s our friend X. X’s mother and father are long dead. X decides she or he would like to be cloned and so a clone of X is created. You want to say that X’s mother and father reproduced again when the clone was created? This is the same (for me) as my earlier problem. I get that the clone is a genetic descendant of mother and father. And I’ll grant that mother and father may have reproduced when X was born or concieved or whatever. But I would not say that mother and father reproduced when, many years later, some laboratory cloned X. I suppose I think when a person reproduces they have some agency, some action in there. And, of course, mother and father, being long dead, don’t have any action.

                  • YAY I FOUND IT – God love you for tagging your posts well. Your an amazingly organized woman. You inspire me. Now let me prove I’m not crazy You said:

                    Julie Shapiro | November 18, 2011 at 8:27 am | Reply
                    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.)

                    Marilynn | November 18, 2011 at 9:00 am | Reply
                    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?

                    Julie Shapiro | November 18, 2011 at 9:14 am | Reply
                    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.

                    ki sarita | November 18, 2011 at 9:28 am | Reply
                    the reason it is so hard to come up with a term that covers all is because its an entirely abitrarily created classification.

                    Julie Shapiro | November 18, 2011 at 12:52 pm | Reply
                    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.

                    marilynn | November 21, 2011 at 12:57 pm | Reply
                    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.

                    marilynn | November 18, 2011 at 12:46 pm | Reply
                    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

                    Julie Shapiro | November 18, 2011 at 12:56 pm | Reply
                    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.

                    Julie Shapiro | November 18, 2011 at 8:07 am | Reply
                    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.

                    Marilynn | November 18, 2011 at 8:20 am | Reply
                    ” 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.

                    Julie Shapiro | November 18, 2011 at 8:29 am | Reply
                    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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                  • So I could try to rephrase this by saying that the IPs caused a child to be created but did not themselves directly create a child. And the child was created using gametes, let’s say, from one IP and one other person. And people in the lab combined the gametes to create a pre-embryo that was transferred to the uterus of an IP. And the child is genetically the offspring of the IP and the non-IP gamete provider.

                    Why do I have to worry about who “reproduced?” And if there is no reproduction, did anyone reproduce? Is it possible to reproduce without creating a reproduction? (I think the answer must be yes–this is the way we use the word–but then it makes me think somewhere in there the meaning shifts.)

                  • Julie the concept of cryogenics freaks me out. I’ve heard you can freeze a fly and then defrost it and have it reanimate maybe I should call myth busters…but correct me if I am wrong but doesn’t posthumous reproduction require that someone basically keep some part of your body alive after the rest of your brain and body are gone? Your cells are still alive – they would be yours as in specifically belonging to your body alive yet in a state of suspended animation the persons body is therefore not completely dead if some part of them, their cells are still alive. Odd concept I know but that is technically what is occurring. The person is not really dead dead until all of them is dead – oh boy there is a legal concept to grapple with. Can’t inherit from a man’s estate if his sperm is still frozen somewhere have to throw it out to truly end the life of his body his cells unique to him. That’s it Julie by keeping any part of a person alive they are alive to be taking actions potentially being used after the rest of them is gone. Its an oddly enslaved kind of thing. I’ll have to think about this. You’ll disagree on the action part because even alive you’ve said the person is no longer acting. But the body on a biological level you can’t deny that the cells of that man’s body have somehow outlived the rest of him and that is how his body is able to reproduce or be reproduced when the rest of him is dust.

                  • I suppose people disagree about when death occurs but it doesn’t seem to me that a person is still alive just because some gametes are sitting in a freezer somewhere. The gamete is not (to me) the essence of the person. I won’t quite go to “soul” (I have no idea what that means, really) but there is something that resides in the heart/mind that can be long gone despite the fact that the gamete persists.

                    Legally this is clearly true (for what that’s worth.) Death certificates are issued, wills are probated, frozen gametes remain. So does frozen plasma, by the way. And perhaps other samples from biopsies, etc. Would you treat those differently? Gametes are different, I can see that, but it is hard to put my finger on how. Are gametes on their own “alive”? (We do talk about live vs. dead sperm.) Again, this seems beyond ordinary scope.

                    It does make me think of two books, though. One is called The Immortal Life of Henrietta Lacks. Henerietta Lacks was a woman with a remarkable form of cancer that allowed the propagation of her cells to this very day. Apparently virtually anyone who has worked with a human cell culture has worked with her cells–they’re knowns as HeLa cells and are found all over the world. She died many many years ago, but in this sense is immortal–same idea, I think, as you are raising with sperm, but the author really means something about her legacy, not her per se.

                    The other book is called Rewind and it’s a teen fiction book–I think I’ve mentioned it here before. It’s a dystopian world where there are a lot of organ transplants and when your organs are transplanted, something of you goes with them. Indeed, the whole idea is that you can be entirely cut up into pieces but you aren’t killed because the parts are reused. It’s a bizarre and disturbing concept but you can see why it might echo your post. Great read.

  2. I understand that what I am suggesting, giving the donor a way to get out of the contract, increases the level of risk for the people they contract with which is typically the clinic, but there is usually that same level of risk in any contract. I don’t think that its asking anything unreasonable of anyone to accept the risk that the person they are contracting with might decide to cancel and pay the penalties.

    Here I think I found the place where the problem exists and it goes back to the title of the post: Sperm is being treated like property so its like selling someone a house you can’t cancel and take your house back. But its not really an object to be considered property its a service a reproductive service being offered to people otherwise you end up with what we have now where people treat the body as property then it has a market value and we open ourselves up to a world of trouble.

    I think we need to change the way we look at the sperm and egg trade to people who are in control of their own reproductive choices that are selling reproductive services under contract so that they can maintain some control over their bodies behavior. We would not have instances of 600 offspring if this were treated like a service under contract rather than a product being sold. I think maybe it would be a good idea if these banks were not allowed to freeze donated sperm anymore. Only freeze sperm that is banked for patients personal use with tighter regulation. Not that it would not still be frozen and sold black market style but I think we need to move in the direction where people maintain autonomy over their own reproductive behavior. I don’t think selling the ability to control our bodies with no way to get out is a good thing.

    • There really isn’t the same level of risk. If you sell me something once I’ve got it we’re done and you cannot come take it back. What you’re suggesting is something quite different from ordinary contracts. That doesn’t mean that you cannot do it that way–but it does mean it would be treating this as something other than a traditional contract.

      FWIW, I’m thinking that law doesn’t actually think of these as contracts because the legal theory here isn’t actually about buying/selling. (It’s that anticommodification thing.) A man gives up his sperm. He gives up all claim to it. But it isn’t in exchange for the money (I mean, this is not how the law constructs the deal). He gives up the sperm so that other people can use it He has no further interest in it. Cannot have it back. Then other people do in fact buy it. But there’s no contract of any kind between sperm provider and sperm user.

      As you say, you want to change now we think about sperm and eggs. Certainly possible. And I think you are entirely consistent. If the sperm is what makes you a legal parent then it isn’t right that you can hand it off like this. After all, you couldn’t hand off the child and the sperm is what creates the relationship to the child. It seems to me consistent with your view a man or woman who provides gametes ought to be able to change his/her mind until after the child is born and then ought to have to formally surrender parental rights. (You’ve outlined this recently.) It’s not the world I want to see, but I think it is a coherent alternative view.

  3. You think I talk alot, its hell to be alone with my brain.

    I had a good idea about why sperm is not property being sold by the man – if it were property like a house, then his actions would cease with the sale of the object – he would never do anything again and nothing would ever happen again to him from the sale of that object that is property. But that is not the case here he the man continues to take action that is to reproduce himself on into the future. He continues to become the biological father of ever increasing numbers of individuals who become one another’s siblings. Because he continues to act even in absentia he is providing a service rather than selling a product. If it were allowed he could stop providing that service at will. Sperm is not an object that is sold and sits there there is a biological action that involves the whole person that happens.

    Your going to tear me to shreds and say you don’t understand what I mean. But maybe not this has nothing to do with whether or not he becomes a legal father this has to do with treating the human body its parts and fluids as static objects to be sold and controlled by others. Maybe since it has nothing to do with parenthood in any other form than biological you might see what I’m saying. He the person continues do do something and I think that is a service that warrants legal treatment as something a person can get out of.

    • Right–we agree about the house. But we’re back to the first disagreement. I don’t think the man is the sperm and thus, I don’t think the man is doing anything each time the sperm is used. I see that you do, though. It strikes me as odd, but there you are. Makes life interesting.

      • Every time a man’s sperm is used successfully he ends up reproducing again, he becomes another person’s biological father. The sperm is a function of one of the services he is providing, namely reproduction. If the sperm had the characteristics of property like an object to be sold he would not continue to do stuff like reproduce or become someone else’s biological father.

        Where there is a baby it is for sure that two people reproduced in order to create that baby. In human reproduction it is humans who reproduce not sperm. You can shop for sperm from someone who is “like” you so that its almost “like” its you who reproduced. You can say “I bought it, its mine and now I am the one reproducing”, but in the end it will still be him who reproduced himself and not you.

        You’d think with all these people caring so little about genetics as it relates to being a parent that they would not need to cling to this idea that they have reproduced or that the donor is not reproducing. Sad

  4. i don’t mean sperm is an action i mean actions are performed through the utilization of his sperm that are uncharacteristic of a dormant object sold.

  5. Marilynn, many of the thoughts you expressed, I thought about too. What if the gamete donation process were treated as an ongoing contractual thing as opposed to a one-time action where you go into a clinic and donate your sperm and sign forms and are forever done with it. What if you are allowed or required to come back periodically and re-afffirm or re-new that contract. That would require the donor to continue to think about his or her decision through the years and allow the donor to change his or her mind at some point. I don’t know enough about sperm banks and gamate donations to know if this is already a possibility. And of course, it would be harder to require this and regulate enforcement in the private donation arena where people are not using a fertility clinic, but in those situations I’m assuming most likely there is fresh sperm being donated for a one-time procedure as opposed to donations that will be frozen. Perhaps if sperm were being donated that will be preserved for future use, then there is some requirement or option to have the donor revisit the contract. Is there any other contractual situation that is similar? That type of regulation would change the way people think about donation. Maybe it would even increase the number and types of people willing to donate because they know there is an option to change their mind sometime in the future (say if a person has started a family of their own and now feels uncomfortable with having unknown genetic off-spring). Interesting…..

    • It seems to me that a sperm bank could do this if it wanted to, even consistent with our current structures. It could say “we will make your sperm available for five years (or whatever) and at that point, if there’s any left, we’ll ask you again. Or a donor could say he’d only give it with this understanding. It’s kind of an interesting way to deal with the regret issue–at least one aspect of it. If ten years later the man regrets having provided the sperm then he can have the remainder destroyed. But of course, if it has been used, that’s it–it’s gone.

      You could do this even thinking of sperm as a variety of property. You could do it as a matter of policy, a reason why your sperm bank is better. And to the extent we are going to require sperm providers to keep in touch with banks–to update information and such like–I bet it will happen. Indeed, it might happen already.

      • In the early 80’s and before fresh sperm was used and other people did not take over and own his body and its reproductive actions. It was a very one on one thing, he’d go in for the purpose of getting a particular woman pregnant and that was it. She did not own the ability to reproduce with him whenever she wanted she could not sell his reproductive services on ebay either. That was a far superior system to the current one in terms of maintaining bodily autonomy and in terms of the donor being more responsible for his own reproductive behavior I think we need to revisit that method.

        • Right–and this is how egg donation has worked until very recently as eggs couldn’t be reliably frozen. Now they can be. It changes things immensely when you can freeze, store and later redistribute these materials.

  6. Would the man donating sperm actually approve of it being used in this particular instance? Creating more half-siblings for his already existing children that will possibly never meet each other because the relationship went sour? Because he relinquished his right to ever decide the moment he donated, his half of his children becomes merely someone else’s property, unlike the ex-husband’s half of the former couple’s embryos. He gets to revoke his decision based on the changing situation.

    It makes me feel that known donors who have to relinquish every resulting child is sounding increasingly better as an idea.

  7. “And if we’re going to keep at this, can you tell me when he reproduced in your thinking? Maybe this would help.”
    Happy to help. Yes I can tell you when I think a man has reproduced.
    “Did he reproduce when he gave the lab his sperm?”
    No of course not.

    When he produced the sperm?
    No of course not

    When the sperm was used in the doctor’s office (or when it reached the egg)?
    At this point the doctor is assisting him and the female in reproducing themselves. If the doctor is successful they will both be well on their way to having offspring resulting from a successful act of human reproduction.

    “I’d rule out the first two entirely”
    No doubt and thank goodness there is a page we can both stand on for a minute.

    “which leaves me with the third. And I cannot say that he reproduced there in the doctor’s office (or when sperm met egg)”
    Good; and you would be right. They are attempting to reproduce. This is something some sperm donors agree to do, other sperm donors do not agree to attempt fertilization of a woman’s eggs with their donated sperm. Those that agree to attempt fertilization of a woman’s eggs may request that the attempt be limited to a particular woman or they may agree that the lab can pick and choose the women for him to attempt reproduction with. What they do with his sperm is entirely up to him; the lab is acting in response to his direction, doing what he said he wants them to do. They can make a mistake or ignore his directions and then he will loose control over who he is attempting reproduction with. That is a sad state of affairs huh?

    “if he was across the country having nothing to do with the activity, etc. That sort of gets at my problem with the language.”
    So you have a problem with the concept of assisted reproduction? That is what the lab and doctors do – assist people in reproducing themselves with other people. They help people try to reproduce, ultimately it will be the people who end up reproducing and not the doctor or lab tech that assisted them.

    Your a professional woman clear on the concept of people acting under your professional direction. My point is that certain sperm donors are doing more than providing sperm to these clinics. It is not their sperm that the lab wants its their agreement to reproduce and agreement to do some other stuff that I won’t bring up because while germane its not necessary to make my point. You don’t sell those papers you fill out when you file a law suit. You don’t sell victorious cases – you provide a professional service to people. I’m assuming that when you have a client you enter into a professional services agreement and the papers and whatever that are filed on the clients behalf are not sold as property but rather are your instruments of service – something you have to provide in order to provide them with the service requested. In a professional services agreement you’ll sometimes agree to do things for someone in the event that something should occur and its necessary to do.

    Look if a guy could sell his sperm to another guy and it would be that guy who ends up having reproduced when a baby is born I’d say sure, he’s selling sperm as property. But the sperm in these instances is an instrument of service. I’m not saying that is how the law approaches it, but I’m saying if we were to apply basic business practices to this situation what you would end up with is the need for a service agreement rather than a sales contract.

  8. Oh a man has reproduced when his offspring are born. When he becomes a biological father is when reproduction is over. Fertilization is part of the reproductive process but if he has some disorder like thrombosis the resulting embryos may be defective and whoever is carrying them might have repeated miscarriages and still births. So my point would be that while his body was capable of getting the reproductive process started he will not have successfully completed that reproductive process until a female gives birth to his offspring. Does not need to be the the same female he reproduced with, could just be a carrier.

  9. Julie I missed some good answers of yours because I did not know they happened. Can you make your list of recent comments on the sidebar longer. We don’t always get notifications if the response is to tomeone else. Don’t want to miss anything

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