Is There Discrimination Against Children Conceived With Third-Party Gametes?

As I wrote a recent post on drawing lines and worked through some of the comments, I was reminded about a question that has come up in comments with some frequency:  Does the way laws are structured discriminate against children conceived with third-party gametes?   I’m not sure I’ve directly addressed this question and it seems like it is worth some thought.

Now I may not be the best person to set this question up for discussion as it is not a question I raised, but rather one that has been raised by others in the comments.  Still, I will try and then trust that others will move the argument along so we can have a look at it.

The first thing to do is to clearly describe the way in which two categories get treated differently.   I think what people generally have in mind when they raise this is that children conceived via third-party gametes may not have a legal relationship with the person who donates the genetic material.   (To make this simpler, I’ll restrict my thinking to states where there is no protected legal relationship between the gamete provider and a child conceived with those gametes.   In some states there is a legal relationship and so that will muddy things.)

Here’s the problem I see:  It’s not the case that children conceived via intercourse have a right to a legal relationship with their genetic parents.   Some do and some don’t.  See, for instance, Lehr v. Robertson which came up in yesterday’s post.    (There are other examples as well.)  This means that my description of the line drawn (those conceived via intercourse vs. those conceived via ART) isn’t right, because I’ve got some of the kids I’m concerned about (those with no legal relationship to genetic parents) on both sides of the line.

Now some of you are doubtless thinking that I’m not really trying here or that I’m not the best person to be doing this.  That’s because I’m not myself a huge fan of genetic connection as a defining factor of legal parenthood.     While it is true that this is my view, I will ask you to believe me that I am actually trying to formulate the discriminatory treatment claim here.    I know as a lawyer that I can only dispute an argument when I fully understand its most forceful presentation so making arguments I want to reject is something I do–and have every reason to do well.

But we all have our limits and I need you all to work with me on this one.   Can we (collectively) try to state the categories of children who are being treated differently?  (There may be more than one way to do this–that’s often the case.)

There’s a different way to approach these questions we may also want to test out.   There are two basic con law arguments you can make.  One–the one I’ve been talking about here–is equal protection.  This has to do with treating different groups differently.

The second is substantive due process.   When you make a substantive due process claim you don’t compare groups but you focus on the right itself.   So for example, can the state forbid all people from using birth control?    If a rule applies to all people then you cannot  invoke equal protection–everyone is treated the same way.   But the answer to this question is still “no” and that’s because the Supreme Court found (in a series of cases the first of which is Griswold v. Connecticut) that there is a right to make your own personal decisions about conception.

You could try to use this general approach–that there is a right to something that all people have–to assert that there is a right to a protected legal relationship with your genetic parents.   That’s quite different from the first argument and it doesn’t require you to identify different groups of people being treated differently.  It does, however, have its own complications which I’m happy to discuss if we got that way.

thoughts?   I’m most interested in hearing about how you all see the categories of children–how you would describe which children are advantaged and which disadvantaged.   But, as always, I’ll take anything offered as long as it is civil.

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11 responses to “Is There Discrimination Against Children Conceived With Third-Party Gametes?

  1. My assertion is that the Uniform Parentage act obligates US citizens to physically and financially support their minor offspring unless they are gamete donors, and then they don’t have to. The UPA sets out to specifically give the under age people the right to physical and financial support from their genetic parents unless they are the offspring of a gamete donor, then everyone pretends they are someone else’s offspring. The UPA specifically sets forth reasons why it is important for children to know and be known to their genetic parents and those reasons include ongoing family medical history and a sense of biological heritage, unless your the offspring of a donor or adopted but I’ll get to that later because adopted kids have a right to this out the gate they just don’t have the right after they are adopted. In fact the UPA sets out detailed guidelines on how the state is suppose to go in search of unnamed parents and potential parents and order those people to take dna tests and if they hide, if they refuse, the state can order one of their relatives to take the test to establish if the person in hiding is in fact that child’s parent, unless that child is the offspring of a donor, then that under age person has no such right. The underage offspring are the only people not entitled to the support of both genetic parents. Other people’s mom’s may not know the identities of their genetic fathers and don’t name them on their birth certificates, but while minors, thwey remain entitled to their genetic father’s support should he ever be found. While minors or while adults they remain entitled to be considered his son or daughter entitled to inherit should he ever be found. In fact if nobody else was falsely named as being their father on their birth certificate they’d be able to go get his name added to their birth certificate. I know I have seen it done. Obviously I have seen a lot of birth records get ammended when people are adults. So long as there was no adoption they are cool to do that. Adoption does need to be reformed but they are entitled to the financial and physical support of their genetic parents while minors as is evidenced by the fact that State’s are required to look for the genetic parents if unknown in order to get their consent prior to giving them up for adoption. No such privlidge exists with children of donors. The consent forms signed are signed privately and not filed in court which means they might not even exist and in many cases that is true and no consent exists like in mix ups and misappropriation where people want to be legal parents to their children born of missappropriated gametes but are not allowed to be.

    So messed up. If we start with the premise that all people with offspring are legal parents unless their obligations to their child are terminated in court, then all minors will have the very same rights. If we say no de

    • We can narrow this to the UPA if you like but we should note at the outset that the majority of states do not use the UPA (I think fewer than ten have adopted something like the 2002 version.) Among those states that do use the UPA I think virtually all have modified it. All of which is to say that the “uniform” in the UPA is far more wish than reality.

      I think your premise is incorrect–where you say that the UPA obligates US Citizens to physically and financially support their offspring unless they are gamete donors. (FWIW, I’m not sure there’s anything in the UPA that restricts its application to US citizens, but that’s not the problem I would really dwell on.) More importantly, I am not convinced that the UPA does obligate people who are not gamete donors to physically (I’m not sure what that means) and financially support their offspring.

      Here’s a link to the UPA: http://www.law.upenn.edu/bll/archives/ulc/upa/final2002.htm You can see that Section 204 (which is about presumption of paternity) is all about marriage, not genetics. Now it is true that this presumption can be overcome by genetic testing, but there are a variety of restrictions on when and how genetic testing can be used and no one says it has to be used at all. See, for instance, section 607. So it seems to me it is perfectly possible for a person to be the genetic father with no ART involved and still not have any legal relationship to (and therefore no obligations to) the child.

      You can also see that the presumption of paternity attaches without marriage. (This is section 204(a)(5).) This provision was added back into the UPA after the 2000 version left it out. It was specifically designed to allow men who were not genetically related and not married to the mothers be presumed fathers. The 2000 version of the Act relied much more heavily on biology alone, but this was quite controversial and thus it was rewritten by 2002.

      I’m not sure where in the UPA the materials you referred to (about the importance of genetic heritage, etc) are. I don’t recall them. Can you point me?

  2. The fact that children conceived in other ways don’t necessarily get to enjoy a legal relationship with their genetic parents does not exactly make your point. I’d never limit the need to be treated equally to only donor offspring. Minors who are stepped on, where the Mom simply names her husband as the father of her offspring, with or without his consent are victimized also by the law allowing falsehoods to go uncorrected even after they are identified and aknowleged through DNA testing. Minors whose mothers know, but refuse to name, their fathers for whatever reason are also victimized. Those minors are being treated unfairly as well. Interestingly though the minor whose mother simply lies and says she does not know who the father is, remains entitled to his physical and financial support – their legal right to be treated as his child is not impacted by their mother’s interference of their enjoyment of that right. Should they find out who he is or should she change her mind or even should he find out any one of them could go to court dna test him prove he was the father and his name would be added to the birth record as father and he would be ordered to support and he’d owe in arrears from the time before he was identified legally as father because he always was the father. Not so for donor offspring. Unfortunately for minors whose mothers have a replacement in mind the replacement somehow winds up being treated as genetic even if they are not. Then they loose their right to have their genetic parent support them. That tanks. But through it all the government expected genetically accurate birth records because it is doing heath research with the parents medical educational and economic histories.

    According to Stuart Bell, Co-Chair of the American Fertility Association and who is also the owner and president of a Los Angeles Sperm Bank, the cost of sperm would skyrocket to ten times what it is today if the government were to impose a strict limit of 10 offspring per donor. He goes on to explain how sperm banks make an initial investment in each donor for screening and testing and harvesting and storing and marketing and tracking each donors gametes so they have to at least break even and to do so with a limit of 10 offspring they’d have to increase prices 10 fold. Which mean their business model requires a minimum of 100 offspring per donor just to break even right now and reducing to 10 offspring they’d have to raise prices tenfold. Quite telling actually. That explains why we are starting to learn of offspring groups exceeding 100, those are the ones that they are turning a profit on. Make no mistake though, if they don’t think they can sell 100 pregnancies worth of sperm which is 600 straws of sperm – the guy won’t make the cut, they won’t bother using him as a donor. So any illusions people have about a donor maybe not having any offspring at all or just a couple….put your business cap on, if they can’t move his sperm with his own truthful background profile, they will just change his background to suit the market segment until they sell at least 600 straws of his semen.

    Its time we saw donor conception as a public health issue the way we see regular conception as a health issue. We record the names of people as parents of their own offspring because each genetic families health information is vital to our understanding of public health in general. Have you noticed that the amended birth record of an adopted person is not counted as a vital statistic? Amended birth records are not collected by the CDC, the adoptive parents medical histories are not studied in relationship to the adopted child the way parents medical histories are studied in relationship to their children.

    Treating donors and their offspring as if there is no parent/child relationship there at all was a stupid, stupid thing to do. We have created a situation where at least 3 million donor offspring under the age of 40, are themselves having children amid a minefield of unknown genetic relatives, not just their unknown siblings. If Stuart’s business model holds true it would mean there are aproximately 30,000 donors and donor families at risk of reproducing with one of the donor’s 100 unknown offspring. The unequal treatment of some people with offspring, calling them donors, and not recording their parent/child relationships as a matter of public health as we do with everyone else – even people who have been given up for adoption are first recorded as the offspring of people who are supposedly their genetic parents.

    • Several points to respond to here, but I may not hit them all.

      The stuff about the economic model of sperm banks is important, but isn’t really about this topic. Perhaps the price of sperm should be more than it is–maybe that cost needs to be borne in order to control the number of offspring problem. That’s a reasonable question to consider, but I’m going to defer it lest it get lost here and/or muddy the discussion I wanted to have.

      I’ve no doubt there are public health implications of ART and you’re quite right that they need to be considered. I think some of them have been, but doubtless there are others that have not been or have not been adequately considered. But this, too, I think is a topic at best tangentially related to the question of discrimination against children of ART and so I’ll defer it.

      For purposes of a legal analysis of a discrimination claim, I think precision in categories is all important. If you’re claiming discrimination based on a particular characteristic (gender, national origin, race, illegitimacy) then you have to show that this is the characteristic being used to divide people into advantaged/not advantaged groups. You have to convince a court that the government is using this characteristic to sort people. Often it is easy to do this–if no women can attend VMI then clearly we are sorting by sex. (It doesn’t mean that all men can attend VMI, but women are disqualified because of their sex.)

      I can sort of see how you can run this argument for donor-concieved children but it isn’t clear enough for me. There’s something muddled here. It could be me, I know.

  3. Think about the fact that donors are the only individuals specifically exempted from having to be accountable to and for their offspring. There is no other type of human being where the parent child relationship is specifically stated to be non existent for recordkeeping purposes. They should have written that law differently so that at least for government recordkeeping purposes as a vital statistic no other person could be recorded as parent and as a vital statistic they would have no right to withhold their identities from the state or federal government. Nobody else has the right to conceal the fact that they have offspring. If they do it they are getting away with it or some other shadiness is going on that may well be overlooked and falsehoods are frequently allowed to stand, but there simply is no other individual specifically excused from parenthood of their own offspring. I say its a matter of public health and a matter of unequal treatment

    • Perhaps that’s a good angle to come at it from. I will think about it.

      One thing to keep in mind: Law often (indeed, almost always) functions by creating categories. People in King County are entitled to library cards, people not in King County are not. People who pass the bar can get law licenses while people who do not cannot. What I mean to suggest is that the mere fact that there are categories created doesn’t tell us there’s a problem. The vast majority of the time categories are perfectly fine as a matter of equal protection.

      But we are suspicious of certain kinds of categories–those drawn on the basis of race, of religion, and to some degree of gender. And we are suspicious of categories drawn around certain entitlements–categorizations around the right to marry, for example, may be subjected to special scrutiny because marriage is a big deal. (that’s not the technical legal language.)

      If I think about how gamete providers are treated in law the first question might be whether there is some reason to worry about this group of people. I’m not at all sure there is. The second question might be whether there is special reason to worry about the activity at issue–and I’m not sure what the right way to describe that is off the top of my head.

      As a general matter, I think the more powerful arguments will be from the child’s point of view, because people choose to be gamete providers but do not choose to be donor-conceived. But there’s a value in thinking about things differently no matter what.

  4. If a court has to terminate parental rights to a child either through abuse/neglect cause of action or accepting a voluntary surrender then would not the child be entitled to the same retroproscity (sp?) of rights? (That is a question for you Julie).

    That is to me the most basic starting point. I as a child had a right to my parents – that right superceded them dumping me along the highway which would be breaking the law – or selling me to the highest bidder making me a slave instead of a child of my parents – only the courts had the authority to sever my link to my parents. It is a grave undertaking that requires judicial oversight. Basic right / basic protection.

    ART children aren’t afforded even that legal protection despite being human beings and citizens of the same country.

    Did that make any type of legal sense?

    • thumbs up

    • One thing to start with–Courts have been fairly reluctant generally to give children wide-ranging rights. This is in part because people who hold rights need to be competent actors who can choose to exercise them and the thing about children–particularly young children–is that they aren’t competent. This is why parents act for children–like if a child is to have surgery, the parent consents, not the child. We premise this on the idea that parents act in the best interests of their children and that they are particularly well placed to know what is best for their kids. I say all this to be clear at the outset that children’s rights are an underdeveloped area of law generally.

      Court’s have been especially unwilling to talk about a child’s right to a relationship with a parent. They usually say it’s just the mirror image of the parent’s right to the relationship with a child–if you have one you have the other and vice versa. Then you can just talk about parent’s rights and courts like that. (I’m not defending this–just setting out the terrain.)

      But none of this tell us where parental rights come from or when they spring into being. State law does tell us that and, as is always the case, it must be bounded by the Constitution. What I mean is a state cannot make up any rule it wants– some rules might violate the Constitution.

      But there are rules the state can make up that don’t violate the constitution. So for instance, NY had rules that said a biological father who tried to find his daughter but failed to do so was not a legal father and that was OK. (This is Lehr, discussed elsewhere on the blog.) Until you are a legal father you have no rights and so not need to terminate them. There’s no legal harm to the child (in the court’s view) from the failure to recognize him.

      ART children do have parents–I think if ART children had no parents that might be a problem. The parents they have may not be genetically related, but I don’t know that this is a problem given Lehr. Perhaps the root problem you are identifying is that the COurt has not accepted the idea that there is a right to a parental relationship based on genetics alone. In fact, it has specifically rejected this idea.

  5. Hello Marilynn ;-)

    According to Stuart Bell, Co-Chair of the American Fertility Association and who is also the owner and president of a Los Angeles Sperm Bank, the cost of sperm would skyrocket to ten times what it is today if the government were to impose a strict limit of 10 offspring per donor

    That has to be stretching the truth. All UK clinics have to comply with the 10 family limit over here and somehow we still manage to have many private fertility clinics and many fertility doctors with nice cars :-) Sperm donors receive £35 per visit to the clinic. I doubt they get more than £6-700 per donation cycle. They don’t receive a fee, but as I understand it US sperm donors don’t get a large fee anyway – perhaps the equivalent of £1500 per donation cycle. Recipients here pay around £1200 per cycle of IUI – maybe twice as much as some clinics charge in the US, but not enough to account for his figures.

  6. Julie said: “Perhaps the root problem you are identifying is that the COurt has not accepted the idea that there is a right to a parental relationship based on genetics alone. In fact, it has specifically rejected this idea.”

    Perhaps not a “parental” relationship based on genetics but they definitely recognise a genetic relationship in probate law, because they rule intestate (right word?) cases based on the person having a common ancestor. There was a case (won’t be able to find it now) where a brother tried to claim inheritance after his brother passed away and was found not a genetic brother, simply because even though he was never adopted out – his mother had relinquished her parental rights (grew up in a children’s home) so he and his brother shared no common ancestor to the courts even though they had a brother / brother relationship.

    Adoptees in most/all (?) states cannot claim to be a child of the deceased and share in the estate for the same reason – we no longer share a common ancestor, unless a named bequest has been included. For the the courts not to recognise the common ancestor because the parent(s) relinquished (whether adopted or not) then does that not mean by default they must have recognised it existed in the first place? How could they recognise there is no common ancestor due solely because of the relinquishment, if they don’t recognise it existed in the first place? To me that says the law recognises the genetic relationship between the parent and child – not just the parent.

    Off topic kind of: Other countries (Sweden I believe is one) have laws that allow for adult adoptees to dissolve their adoptions and not have a common ancestor legally. The US does not allow that to happen, although they allow the AP to dissolve the adoption when the child is a minor. For the US adult adoptee to not share a common ancestor with their adoptive family they must be adopted again – such as back into their genetic family.

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