Baby Boxes in Europe and The Rights of The Child

Thanks to Olivia’s View I was alerted to a current controversy in Europe around the use of “baby boxes.”   Baby boxes allow for the safe abandonment of a newborn child.   They’re akin to the Baby Moses laws I wrote about some years back.

In either case the idea is that when a woman gives birth to a child she does not wish to raise, there should be a safe (and legal) way for her to abandon that child.   The impetus here is that if there is no safe and legal way for her to abandon the child, she will instead leave it in some terrible unsafe place–the woods, a dumpster, whatever.   Thus, giving women in this position a safe option will ultimately save the lives of some children.

That is the theory, anyway.  Is it true?  I mean, does it actually save the lives of children?  That matters because baby boxes or baby Moses laws also have a cost–the children abandoned in this matter may never know who their genetic parents are.   Some UN officials doubt that baby boxes save any lives and therefore don’t see that they are worth the cost.

You should note here that people will differ in their assessment of both ends of the equation–whether the baby boxes save lives and what the cost is in terms of the harm wrought by the deprivation of information.   It seems to me that it is very hard to make any definitive statement about either end of the equation.

On the one hand, it’s quite clear that babies are occasionally found in dumpsters or various other horrifying circumstances.   Sometimes these babies die.   Would they be left in a baby hatch or a haven designated by a Baby Moses law?  Well, some babies are, of course.  But we don’t know what would have happened to those babies had there been no safe option.   Still, it seems to me you have to assume that at least some of them would have been abandoned under unsafe circumstances.  I find it awfully hard to believe that a person who wasn’t planning to abandon a child is moved to do so because they can do so safely.

And on the other side of the equation, we know that some people suffer from lack of information about their genetic origins, but we also know that not all people suffer or suffer in the same degree.  (This account of a man who was a foundling as in infant offers a story that is slightly different from most of the ones that I’ve read.)   And we know (I think) that concealment and openness matter here, too–I mean that it is generally better for people if they know what they do not know than if they are mislead into thinking a genetic connection exists where one does not.

I’m sure it is no surprise that to me the trade-off embodied in the baby boxes is clearly worth it.   I think the harms experienced by the abandoned children can be mitigated (I do not say “erased”) and the risk that they will be abandoned under unsafe conditions is real.

I appreciate the view of the UN official that better family planning services, counselling and support would be preferable.   (I wonder if she would add access to abortion to this list?)   Of course it would be better if there were no unwanted pregnancies, no unwanted children.   But (and perhaps here I should confine my thoughts to the US) we are nowhere near this point in the US.   Indeed, if anything there is less access to contraception than there was in the past.   So I think we have to think about what we do until we reach that perfect place.

There are a couple of other points of interest to note.  First, baby boxes aren’t a stand-alone issue.   As the Guardian coverage notes,

[i]n western Europe the issue is complicated by religious practice and the law. Sari Essayah, Finnish MEP from the centre-right Christian Democrats, pointed out that in Scandinavia “two lesbians can get sperm anonymously and have children. They don’t know the name of the donor. So what about the rights of the child? The UN have got it wrong here about baby boxes.”

It seems to me you can separate the use of sperm from an unknown (and unknowable) provider and the use of baby boxes.   The latter can be justifed more easily on the lesser of two evils sort of ground.   But no doubt the acceptance of use of anonymous sperm providers suggests a view that the harm from not knowing genetic origins isn’t all that great.  Both embody some rejection of the idea of a natural parent/child link rising from genetic connections.

Second, there’s a gender issue raised here.  Who is abandoning the babies?  The suggestion from anti-baby box people quoted in the Guardian is that it is male family members depriving women of wanted infants.   That doesn’t seem to fit the pattern in the US–to the extent we have an idea of what it is.   Here it seems to be more about women–often quite young women–left alone in their pregnancies without support of family.    I wonder if there’s really a difference here or if there’s really any research to help us sort it out?

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54 responses to “Baby Boxes in Europe and The Rights of The Child

  1. Well lets be clear here part of the problem with the baby box thing is that its not possible to know who put the baby there. What if the mother put the baby there without the father’s permission? What if she did so without ever even informing him that she was pregnant? Getting consent to adopt from both parents is enormously important. Yes women do give up their children on their own but attempts are made to locate the children’s fathers and the do have fathers even if none are recorded or identified – that is why we try to locate them to get their consent to the adoption.

    And how do we know that the child was not taken away from the mother without her consent by the father under threat of bodily harm to her and the child? How do we know that the child was not taken away from the mother and father by the grandparents under simple threat of discontinued financial support?

    Baby boxes create a situation where its OK to leave a child in a box with no explanation therefore nobody does an intensive investigation into the child’s background. What if the child were kidnapped from out of the area and the kidnapper got scared and put the baby in the box rather than returning the baby to his or her parents?

    If you want to see what happens to a country that allows this type of abandonment to stand without investigation look at China! Every one of those little children has the exact same story about being abandoned in a basket with a note in a red envelope. Who knows how many of those infants were kidnapped and the story signed off on by a corrupt worker at a place designated to receive such children. An intricate network of buying and selling can thrive under these conditions.

    • I think it is interesting that the European coverage makes no mention of the potential father’s rights issues that you raise here. Given that there are several articles that raise a number of issues, this leads me to the tentative conclusion that the men do not have legal rights in this regard. That is certainly the case here–remember all the long discussions of the Utah adoption laws? The mere fact that a man is genetically related to the child does not necessarily give him the status of legal parent–at least not in the US. If he is not a legal parent, then he has no right to object/not object.

      I noticed that the concern that someone other than the mother (an older male relative, I believe was suggested) might place a baby in one of the baby boxes. I cannot say it wouldn’t happen. But what I can say is that in all the stories I’ve read about the analogous US laws–sometimes called Baby Moses laws–I’ve never seen one where it is even alleged that this is what happened. Instead, it is nearly always (I actually cannot think of an exception, but I will insert “nearly” to be safe) a young single mother who abandons her baby. In general it is in circumstances where there is no support for her–no practical way for her to keep (or to even acknowledge) the child. Indeed, the impetus for the Baby Moses laws is generally instances where babies are abandoned in unsafe places–dumpsters, alleyways, public bathrooms.

      I don’ think anyone is arguing (or at least, I’m certainly not arguing) that the baby boxes are an excellent social policy that ought to be seen as a model for wider family policy. Instead, I think they are a solution to a very real problem.

      While I think child-policy in China is worth discussion I think it is a bit different because of the one-child policy. I would therefore set it aside for the moment.

      • Well, technically, the father could be married to the mother, or could have already taken legal steps to have rights while not married – yes, 99.9% of the time it’s probably a single mother, but I don’t think we can say with certainty that the child who is abandoned can’t possibly have a legal father.

        • You’re right, I think. The child could have a legal father. But it seems to me that the same set of protections that could guard against the kidnapper who deposits a child in a safe-haven could work here. You could check against the putative father registry or lists of children reported missing or all sorts of things. And I do believe some of the statute require this.

          • Since the woman’s name is not recorded with Safe Haven, the only option to use putative father registries or paternity cases would be to notify all men who indicated a similar due date or birth date. I wonder if that is what is done in the states that require checking the registry with safe haven babies.

            • Here’s the link to some information TAO posted earlier. http://www.childwelfare.gov/systemwide/laws_policies/statutes/safehaven.cfm

              It looks to me like in five state the people with the baby will check the putative father registry. I don’t know what they do if they find a potential match and it doesn’t look like they check out of state registries, but I cannot tell. (People have said before that a national registry might be a good idea and this might be an occasion to repeat that point.) Since the unmarried father will often have no legal rights if he hasn’t listed himself on the registry this legal structure might make sense even though I know many of you will find it inadequate.

  2. I vote for the woods.

  3. All children have biological parents when they are born; how they became biological parents is irrelevant to their very real physical relationship to their children.

    • Are biological parents the same as genetic parents? I mean–I would say that the woman who gives birth is a biological parent, but I’m not sure you would. If she is (and if the genetic parent are also biological parents) then I take it a child could have three biological parents?

      I’m not sure that this conversation belongs with this post but given your comment it’s what struck me.

      If you think of gamete providers as biological parents (which I believe you do) then I’m not sure I agree that they have a very real physical relationship with their children. Indeed, this is for me quite important. The gamete providers (the people, I mean) may have absolutely no physical contact with the child produced with their gametes. This is why I’d say they have a genetic relationship but may or may not have a physical relationship. The woman who gives birth very clearly does have a physical relationship.

      In general I would have said that physical relationships were important to me but not so much to you. I think you might be expanded the term
      physical relationship” to include genetic relationship though. That’s an expansion I am not sure is warranted. Of course, words can mean whatever you want them to mean, but if the meaning you give isn’t widely shared it can make discussions confusing. I think when people speak of a physical relationship between parent and child they mean something hands on rather than something only determinable via DNA testing.

      • Oy vey. Genetic

      • The very real physical relationship between a child and his or her genetic parents is that they share biology with their genetic parents and maternal and paternal relatives. That is as real as real gets. They have very real full aunts and uncles very real full grandparents and cousins on either side to avoid making out with in the back of a car on prom night. Yes real physical connection that cannot be duplicated or simulated real real real.

        • I don’t think there’s much I can say in response except that “real” is frequently going to mean different things to different people. In this setting the “real parent” is going to be the genetically related one and for other people the “real parent” will be the person on the scene doing the day-to-day work the job entails. Perhaps this means it isn’t a very useful term for me to employ–because it just makes it harder to understand the core disagreement–which isn’t actually about what is or is not real but is about what should count/what should be most important (in law).

          I did not realize until now that we used “physical” in different ways as well. I’m not sure I’ve used it much in the past, but if/when I have used it I have meant a hands-on relationship–actual touching, presence in the same place and what not. If one uses it this way then there is no necessary physical relationship between the gamete provider and a child, although of course there could be one.

          I’m not exactly sure how you are using the word but it obviously encompasses more than when I use it. It’s expansive enough to included shared biology. But then it seems to me you might also need a term that is more limited–that covers only those relationships that are hands-on (as I described above). These are the ones I called physical. Is there a term you would use to describe these in the place of physical? It just seems to me one needs to be able to distinguish betweeen human relationships that include actual bodily contact between people and those that do not. Or is the distinction not important to you?

  4. agreed with Marilyn. how can we create a system where anyone can dispose of anyone’s baby?

  5. I imagine though that if someone reported a missing baby, and at the same time a baby turned up in the baby box, law enforcement should make the connection…. although you really never can depend on the powers that be. Also, someone may have driven there from a faraway location entirely.

    • I take it that this is about the concern that a kidnapper would snatch a child and then deposit it in a baby box? I am inclined to agree that if someone reported a missing baby this would be one of the first places they’d check–it would be simple to do it. Is this really the kind of worry that would outweigh concerns for kids who are abandoned in dumpsters? Has anyone read of a case where this happened?

  6. Julie – I am against this practice. Those that choose the dumpsters for their babies are not the ones who would chose the baby boxes – they are the ones that are very young, or scared for whatever reason, or drugged, or mentally ill. Those who choose the baby boxes are those who for whatever reason don’t want to or believe they can parent and don’t want the stigma of choosing adoption and who would be too afraid of simply abandoning the baby. Of course I cannot prove this because it is set up so that you can’t prove either/or but if you look at the stats of dumpster babies prior to the inception of the baby boxes – the number is a mere fraction of those who use the baby boxes (even accounting for those not found).

    There is no reason in the world to employ this system when it is completely legal to surrender your baby to either the state or to an adoption agency state or private (based on the individual countries laws). If they want to employ something like this they should make it legal to do so in hospital after birth – making it this way – more and more will be tempted to keep it completely secret and do home births without even a midwife present, and it will result in deaths to either or both mother and child.

    Trying to use anonymous sperm donation as a justification is a type of logical fallacy. In addition, these countries signed onto the Convention on the Rights of the Child and must over time adjust the laws in place at the signing – Canada gets assessed on their progress I believe every 4 years and details out what has been accomplished and yet to be accomplished. This advent of baby boxes happened after the signing and is in direct contravention of the treaty.

    • I haven’t seen the stats about the baby Moses laws (and I’m more familiar with the US practices, so I do tend to focus on that). I’m not sure they are used all that much and I think they are designed to work with very young infants–newborns, basically. I think they are aimed precisely at those young women who would abandon a baby because they’ve concealed their pregnancies, because they are alone and unsupported, because they cannot care for a child.

      I have no doubt that provision of good pre-natal care (and good health care generally), a guarantee of support for mother and child (including shelter) and good contracteptive access would be a much better set of programs for all concerned. But we are so far from this in our country that it seems to me we have to do something in the meantime.

      I do see that a woman might seek to go around all the adoption requirements by just abandoning the child. How could we establish whether this is actually a common problem? I wonder if there are many instances where women receive regular prenatal care and then use the Baby Moses option?

      I’m sure my analysis is shaped by the fact that I probably place less emphasis on the loss of genetic lineage information than dobrie many of you reading this, but I do not mean to suggest that this loss isn’t important. As is so commonly the case, I just end up striking the balance differently than other people. This has to do in part with my sense of who it is who is abandoning infants. Of course, there is no substitute for real information and if anyone has access to any studies, it would be great to have a look. I have scanned the web briefly and not found anything.

      There’s more to say in response to your comment, but I’m beginning to think I need a second post on this topic and I may hold some of my responses until then.

  7. Julie I think you and others may be focusing too much on only one draw back of these baby boxes or safe haven laws and it is the least important of the problems. What? Did I just say knowing ones biological parents is the least of the worries with this system? Yes I did. In fact, I’m always saying it but I fail to get you to really grasp that truth.

    The black market is where things are exchanged under the table and off the record. The lack of state and federal oversight makes the black market ripe for graft and corruption. A black market adoption might involve a doctor that specializes in matching hopeful adoptive couples with young unmarried pregnant girls who don’t want their names to appear as mothers on their children’s birth certificates so for a nominal fee they will write the names of a hopeful adoptive couple on the birth record of a young girl’s newborn child to make it appear that they are the child’s biological mother and father. There is no record of the mother and father relinquishing their child to the adoptive couple, no proof that they really did consent and were not coerced or bribed.

    Because there is no public recording of the child being left in the baby box because the identity of the person who left the child is not known, the person who opens the baby box is in a position of great power and can transfer the child to a friend or client without ever recording the child as received so that the child could be recorded as a home birth for a prospective adoptive couple.

    I can also see where adoption facilitators might encourage young pregnant women to relinquish their babies through the baby box system and pay them a little to do it that way for the benefit of the adoptive clientelle’s privacy and even promise the pregnant women that they’d be given the names of the adoptive couple off-line and then never follow through. This would leave the parents of these children absolutely helpless to prove that they’d had any dealings with an adoption facilitator.

    Part of the appeal of these baby drop boxes is that there will be no investigation to locate or identify either of the child’s parents and this will make the adoption process that much quicker with nobody to protest.

    I can even see where these boxes will result in hasty adoptions which may ultimately be discovered fraudulent like kidnapping or where the child was taken under duress but then once the parents come forward to claim their child the authorities will say that crap about “you can’t take the child away from the only parent’s he/she has ever known” and then the tragedy deepens.

    Julie more than a right to know ones origins or a right to be raised by one’s parents is a right to not be transferred around as property, treated as property. A child’s genetic parents are the only people on earth whose relationship to the child is without question not one obtained through sale or trafficking and therefore we must always start with them as the recorded parents of the child to ensure we have a pure starting point for the chain of custody because anyone who has the child after them may well have paid or been paid to take the child or may have taken the child for nefarious purposes. That needs to be investigated by the state and federal government if we are going to profess a concern for the welfare of children.

    What we really need is a system where parents can relinquish their children to be cared for while they establish themselves but that requires the parents to take back their children when they are able to raise them themselves and only places them in the custody of others when the parents are convicted of a crime and jailed for it and even then the parent’s burden of support should never be lifted. We need a temporary solution to their temporary problems that does not involve creating permanent relationships with temporary caregivers even if temporary means 18 years. We need to record and solidify the permanent relationship between a person and his or her genetic parents while allowing for the possibility that their parents cannot be the ones to raise them. This would make adoption possible to build secondary family structures with adopting parties without erasing the child’s relationships to their parents and all their other relatives. Boxes of anonymity are not a solution that benefits the child that is a method of making more money off adoptions.

    • I do see the possibility of the abuses you mention but is there any indication that any of these things are actually happening? If they are happening on what sort of scale? And how do you weigh that against the possibility (which seems to me undeniable) that some infants lives are saved because there is a safe way to abandon them?

      This is one of those classic instances where I think a balance has to be struck. I think that proposition ought to be one that most agree to. The complication is how exactly to strike the balance. To do that I think I have to weigh the possibilities you mention against the risks that safe havens can protect against.

      It’s also worth focusing on some of the details–because you can have better or worse safe haven laws. For instance, you could fairly easily have a requirement that any baby received is documented from that time on. In most US safe haven laws, babies are left at firehouses or hospitals, I think. It’s not hard to require reporting from either place. (For all I know it is already required.) That will mitigate (not eliminate) at least some of your concerns.

      • Julie, I don’t know if things are happening like that right now, but so what? That’s no excuse for crafting a law that could easily become a safe haven for abuse, with absolutely no checks and balances……

        • TAO posted a link so some descriptive materials about the safe haven laws. There are safeguards–and they vary place to place. To assess them you’d have to be clear about what the abuse you were worried about is and then consider whether there’s a safeguard that might prevent it.

          I’d also want to make sure that whatever abuse one focussed on was non-fanciful. For instance, I have not seen anything anywhere that establishes links between the safe haven laws and some sort of black market in babies, so I’m rather less inclined to worry about that particular problem.

          So what exactly are the abuses we are most worried about? I think several have been raised here at different points.

          There’s also a slightly different question: Given that a safe haven–even if perfectly calibrated–will necessarily mean that a child will not have access to information about genetic parents should we have these laws? This is what I’ve thought of as the basic trade-off question. I say “yes” but I know others say no. What makes this a different question (in my view) is that here we aren’t talking about abuse but about the basic purpose of the safe haven laws even if it is structured so there is no abuse.

          • Julie we have a system that pretty well documents the birth of every infant. If your raising a kid at some point someone is going to ask you where the kid came from and you will have to produce a birth certificate or submit for a delayed registration of birth.
            Put a baby in a box at a fire station or hospital with no witnesses to the drop and that baby is first come first dibs I know a guy who is a nurse at a hospital here in SF overnight and he and his husband were going to adopt one of these drop box kids he said if he were a woman he’d have called his husband to pick up the baby and they would have recorded it as a home birth and told their co workers they adopted. Its a foundling so nobody is hurt right? He would not have to record the baby as received the whole point is to find the baby a home anyway. We have no way of knowing how many babies are really turned in because the people on call get to make that first call and if they have the means to transfer the child immediately into the home of people they know have been wanting a baby why not? He’d been waiting to adopt with his husband for years and years and he was very excited about having first dibs on a safe haven baby I don’t think it ever panned out because they are not adoptive parents yet but the fact that he spoke of it this way leads me to believe that his thoughts are not all that uncommon. Certainly not harmful to the child on the surface in any way. But what if someone in that position wanted to make a little cash? Just a little. For their trouble. Nobody would really be hurt by that right? The kid was after all abandoned and people would have to pay a real adoption facilitator twice as much…….

  8. agreed marilyn with almost everything your wrote. this baby box thing sounds like a free for all.
    except that foster care has been a dismal failure for most

  9. A person whose parent or parents were gamete donors is similarly situated to a pseudo-foundling in that they have no proof that their estranged parent or parents 1) was aware that they were born, and 2) gave their consent to the transfer and if they did in fact give off-line consent there is no proof that consent was not given under duress or given in exchange for goods, money or services.

    They both lack the essential protection offered to adoptees of having the identity of their biological parents confirmed before someone else takes over in raising them.

    An often overlooked problem with gamete donation is that it is not handled in court first in order to make it valid and people are loosing their offspring unwillingly when their gametes are stolen or mistakenly given to others without their permission. Julie you may say that this is not a big problem but it happens frequently and it is a real problem for those who never consented to give up their offspring. Its an enormous violation of their reproductive freedom. It essentially says “yeah its wrong to steal your genes and reproduce you without your permission but you have no right to raise your own offspring so we are going to steal your genes anyway.”

    If people are going to reproduce with donors they should have to go to court after the child is born with a positive maternity or paternity test in hand proving the relationship between the donor and the child and then go through the adoption process so that we can be 100% positive that the child is the offspring of a consenting donor and not the offspring of a non-consenting person.

    If it turns out that the donor they thought the child came from is not related to the child then a full scale test of every donor and patient should be undertaken to locate the child’s genetic parent and either get their permission for the adoption or split custody with the intending couple.

    • I have no doubt that it is wrong to steal someone’s genetic material and use it for reproductive (or perhaps any) purposes without their knowledge or permission. I do, as you say, have trouble seeing that this is a major problem. Can you cite me to something?

      I can actually only think of one instance where I’ve seen it discussed and it was a very odd case–the allegation was that a woman saved sperm after oral sex and then used it to self-inseminate. That’s not going to be a very common pattern–I’m not entirely convinced it is even possible. Is there some systematic way in which sperm/eggs are being taken without people’s knowledge or consent?

      In any event, it seems to me that I can agree that this is a bad thing and begin to think about controls for it. While judicial review is one possibility it isn’t the only one and it is a particularly expensive one. But in order to think of controls I need to better understand the problem, which is why I need to understand when and where this is occuring.

      • There have been cases where clinics mixed up eggs and sperm. I think you posted one where a man had sperm at a clinic for use by his wife but the clinic gave it to someone else so he lost rights to the child against his wishes? But I’m not sure it happens that often really.

        • But, perhaps that simply requires updating to the law – such as the laws regarding donor inesmination (husband is irrebutably the parent if he consents to insemination) only applying if the sperm provider signed a consent, so that a man would not be treated as a forced sperm donor with no rights in cases of a mixup.

          • Yes absolutely I think that at minimum people who buy embryos and gametes ought to sign stating that they understand the biological parent will have a right to custody or shared custody of their own offspring in the event they receive a gamete or embryo from someone who did not give his or her consent.

            • It would only make sense to get this kind of signed statement if it was actually an accurate statement. I’m not sure that it is. I’m thinking here of the cases where genetic materials are accidently mixed up (which is the set of circumstances you mean to refer to when you talk about people not having given their consent, right?) Many of them do come out this way, but I’m not sure all of them do. These things tend to get hammered out case by case–there’s not a lot of law out there.

          • I cannot recall if the statutes include this but it is what the courts generally do when they are faced with the cases as I recall.

            • There was a case in Oregon? where the biological father lost because the woman who got it by mistake was married, she and her husband didn’t want bio father to have access, and state law didn’t allow husband’s paternity to be challenged if he agreed to insemination – even if the sperm provider did not consent (his sperm was stored for his wife’s procedure). I think that law seems extremely unfair.

              • I can well imagine it would play out this way. In many states the marital presumption is such that if the husband and wife stand together they can beat all comers. As with the Maryland case I recently discussed, the court may decide that whether to do blood tests will turn on the best interests of the child and, if the child is already living in a home with married parents, that’s better than whatever alternative might present itself.

                • You could say a man might consent to that if he’s aware the woman may be married, but it comes across as majorly unfair when a 3rd person gave the married woman the man’s sperm without his knowledge or consent

                  • It’s certainly different. You’re thinking here of where a lab mistakenly hands the sample to the wrong person? Or something more malevolant? I’m not sure it matters, but it might. Of course, both are wrong but you might want to address the wrongs differently.

                    I think the hardest part is what you do about parentage. And here I think the question is how you weigh the harms to the various individuals and the well-being of the child. And also how much weight you assign to the child having the genetically related man as a legal parent (as opposed to some other interesting adult). The problem here–and it is a problem that comes up in other settings–is that many people would say that from the child’s point of view, being raised in two households (that of the bio mother and that of the bio father) that have no connection to each other is less than ideal. So you might want to assign the child to one household or the other rather than having a typical shared custody schedule. If you value the connection to the genetic parent who isn’t getting legal parentage, you might try to give that person some sort of status, but something less than parental rights.

                    But this is all from the child’s point of view–and I know some will disagree with me about that, too. It doesn’t take into account the harm done to the mistreated genetic parent. And for me it raises this core question–do you do something less than good for the child in order to make the parent whole? I am inclined to pick the child’s well-being over the parent’s, but I’m sure some will make the other choice. And of course, some will challenge my whole framework and say that it is best for the child to be raised in those two separate households so that’s the win/win situation.

                  • In respose to Julie’s response why are you assuming that its necessarily bad for genetic parents to share custody of their offspring? People do it all the time, it is perfectly legal and so it should not be treated as if the offer is somehow horrible or illegal. Many people amicably share custody of their offspring and the children turn out much better than had they been raised in the same house with the two parents at one another’s throats.

                    So here you’d have a genetic father who gave his gametes to the clinic because he wanted to become a father he wanted them to help create offspring for him and they did that only they did not do it with his wife they did it with some other woman. He finds out about this and as any good father would he cares about his child even though his child does not have the mother he was shooting for, but the child would be related to him to the same degree regardless of who the mother is so really she is rather irrellevant once the child exists, he is presenting himself as wanting to do the responsible thing and support his child physically and financially. That responsible behavior on the part of a genetic father can only be viewed as a good example for the child about a father’s dedication and it can only be viewed as good for the child financially to be supported that way by the father and if the father is married his income is increased by the amount of his wife’s income and that will net the child even more financial support than if he was single. So if the mother and father share custody the child will financially benefit from having support from the joint marital incomes of its mother and step father and its father and step mother. Why would we not want them all to behave like adults and do what is in the child’s best interests financially and also emotionally since the child will have the benefit of being included rather than excluded from his or her own paternal family and will have the benefit of being raised with loving step parents. I would definately favor the genetic parent who was willing to make it work to give the child everything the child deserves rather than the genetic parent who is so spoiled and selfish they can only think to force the child to live out this fantasy that she and her husband conceived the child together without the genetic involvement of anyone else. I cannot see why anyone would favor the senario presented by the parent who was not willing to compromise for the benefit of the child so that the child could have all that he or she deserves. Why would we favor creating a permanent parent child bond with a person that the child does not have a permanent connection with – their marriage could end next week and the child would be left with permanent ties to the mother’s ex husband and no legal ties to his or her actual permanent genetic family? That is so absurd and short sighted. It places the mother’s romantic fancy in front of good old fashioned reality. And the kids father WANTS to support his kid – he is not even being forced like so many men based on the same positive paternity test standard. Its so selfish how can that be best for the child? How can we say that its better to create a false reality and an elaborate lie than to just make the best of the truth?

                  • I was mainly thinking of clinic mix-ups, yes.

                • Also, the way it was worded, it seemed the presumption could be challenged if the baby was naturally conceivedin that state but could never be challenged if born from IVF or AI. So perhaps lawmakers didn’t think of this scenario.

            • Though its certainly possible that other states would allow another outcome.

  10. I don’t think it’s the same. donors have already indicated they are not interested in raising their offspring.

    • “I don’t think it’s the same. donors have already indicated they are not interested in raising their offspring.”

      Yes, that is what people are TOLD. There is no proof of that though the way there is when a child is adopted through the court system. People that purchase gametes and embryos are TOLD that the gamete or embryo came from willing donors but they have no proof that this is true. They are trusting that the gamete or embryo they receive really came from someone who consented and this is often not the case at all. http://www.katu.com/news/medicalalert/3962346.html.
      http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2148&context=llr

      They are trusting that the gamete or embryo they receive really came from someone who also matches the description on the profile they selected and this is often not the case at all. http://www.dailymail.co.uk/health/article-146241/Our-devastation-fertility-mix-couple.html

      A person who is told they are a donor’s offspring has no proof that their absent biological parent consented to not be in the life of their biological child. They are expected to trust that their absent biological parent really did consent even though there was no direct signed agreement between their legal guardians and the absent biological parent and nothing was approved in court. It is quite insulting to tell someone that they should simply accept that someone else gets to play the roll of their parent without any proof their real parent even knows they exist let alone consented not to raise them.

      • So do you mean to refer to instances where samples are lost/mixed up and assigned to the wrong people? I thought you meant instances where people were deliberately mislead or deprived of their own gametes. Sorry.

        These are obviously terrible mistakes and I’ve written in the past about how difficult it is to either make amends or assess the harm done. But it seems pretty clear to me that you can impose requirements for better tracking systems that will minimize the circumstances under which this can occur. It won’t be perfect–and you might insist that until it can be perfect it’s not good enough. But rarely do we insist on perfection. After all, to err is human…..

        I wouldn’t argue against figuring out what best practices are and insisting on them. I think the possibility of accurate tracking is pretty strong if your willing to invest in a good system that has checks and double checks.

        FWIW, I think it is misleading to describe a case where the gametes are mistakenly directed as one where they are stolen. There’s a critical difference between being harmed by a mistake and being harmed by a deliberate act even though in either event you are harmed.

        • No your missing the point. The point is that the origin of the child should 1) be verified and 2) consent to allow someone else to raise their offspring should be obtained AFTER the child is born BEFORE granting anyone the authority to refer to themselves as the parent of another person’s offspring.

          Whether by mistake or outright graft what needs to happen is that the error or crime not wind up double screwing over the person whose gametes were stolen by having their child forcefully raised by someone else against their will and wishes. The authority over ones own reproduction should extend to authority over the child unless consent is obtained and if it is not obtained then the intended parents should not wind up with the kid.

          • Right–I didn’t see that this was your point at all. Though I’m not sure what “verification” means, it probably wouldn’t be hard to accomplish that. Your second requirement however, alters the fundamental structure of the law governing ART. (I take this to be your purpose–I don’t meant to suggest you are unaware of this.) It’s certainly a plausible structure for law and I do know it is one you would prefer. Were the law structured in this way there would be no use of third-party gametes since the gamete provider would always be a parent, right? At least until they gave up parental rights at some point after the child was born. We’ve talked about this a lot in many places on the blog but it seems to go far beyond our topic here.

            • well first I’d stop referring to the other party as a 3rd party. It only takes two human beings genes to make their offspring so basically you have those two people putting their genes together to make their offspring and it really matters not how they decided to come together in that project of conception its my contention that both of them must be on the hook to care for the child unless they go through a court approved procedure where everything is documented. So if the woman who gave birth is not related she adopts if her husband is not related he adopts or wife she adopts. I don’t see this as stopping the current process at all. I’d just make it a crime to conceal the identity of the genetic parents from the people intending to raise the someday child and of course I’d make it a crime for them to put their names on an original birth record where I think genetic parent’s names should go. That does not stop the gamete provider from providing gametes. I see conception and childrearing as separate processes which I think you do too. I don’t think giving birth makes a person a mother. I don’t think raising a child makes a person a mother I think being the origin of a child is what makes a parent a parent and their names should be forever tied to their offspring legally so that all other maternal and paternal relatives are legally recognized for the offspring permanently. Too much is lost when they are not. That’s all.

              • I’ve been using the “third party” term for quite a while now (at least since here https://julieshapiro.wordpress.com/2010/08/25/is-third-party-sperm-a-bigger-issue-than-third-party-eggs/) and I think I talked about why at the time. The more conventional usage would be sperm donors/egg donors/gamete donors. I’m persuaded that “donor” is misleading and so have been using “providers” instead. But there are sentences where that doesn’t work.

                The reason I think of them as “third-parties” is this. In a classic case, husband and wife need to use sperm (say) from someone else. The intention of the people is that husband and wife will be the two parents and raise the child–and indeed, the law typically facilitates this. The sperm donor is neither the husband or the wife and isn’t meant to be a legal or a functional parent. He’s a third-party–and this is third-party reproduction–using a third player (after the husband and wife, who are one and two.)

                Now it’s weird to say third party when you have someone who wants to be a single parent, but it’s much less confusing than changing it round depending on the plan. So I stick with third-party even if it’s someone providing gametes for a single parent.

                You want me to change it because in your view this person–my third-party–is always a parent. I’m not going to do that. I will agree to describe him or her as a genetic parent when that’s important, but he or she is not necessarily a legal parent and isn’t intending to be a functional parent either. All of which is to say that I’m sticking with my terminology.

                I think moving to the system you describe means (legally) there is no such thing as a sperm donor/sperm provider who is not a parent. Indeed, that’s your whole point, right? Any man who provides sperm for the insemination of a woman is the legal parent of that child. He may keep his rights or he may be allowed to reliquish them (but in many places if she is single he will not be allowed to give up his rights–he’d need to find someone to take his place.) It’s not the same as making AI illegal but it would make it largely for most people. The people who currently use sperm from sperm providers do not want to raise children with the men providing sperm. The people who provide the sperm do not want to raise children with the people using the sperm. Only a very small number of people would proceed if there was a fair chance that’s how it would turn out.

                Now that’s fine with you, I think, and that’s a totally legimate view. But it’s not my view.

                I think the question of having access to information about the gamete provider can be (and should be) considered separately. You can accomplish that without making the provider a legal parent.

                • People like foundlings. Children who are abandoned by their unknown mothers and fathers rather than being relinquished by their well known and clearly documented mothers and fathers. People like foundlings because they can raise them without the spector of the child’s parents hovering over them and the child. People like the clean slate, they like the child to have no existing name no history no other family to interfere with their ability to bond with the child and play the role of primary care giver. But abandoning children is illegal for parents to do so it is very rarely done and when it is done the law attempts to investigate and figure out who the abandoning parent is in order to undertake the normal adoptive process where everyone’s motives are checked out etc. These days what with information traveling like it does people know when a friend or collegue was pregnant and then is no longer pregnant but is conspicuously without a child en tow. People will rat the abandoning parent out in a heartbeat. No there really are no foundlings anymore, not for more than a day or two tops before being found out. So what do people who want foundlings do? They look for ways to help people abandon their children outside of the court approved adoptive process. They do this by trying to make abandonment legal under certain circumstances like if its arranged in advance of birth or conception like with surrogacy and gamete donation. They look for ways to make abandonment legal post birth like with safe haven and baby box laws. They look for ways to make illegal abandonment possible behind closed doors like with black market adoptions.

                  Gamete donation, baby boxes, safe haven laws, surrogacy all have the same ingredients – genetic parents abandoning their offspring without being identified so that their offspring become foundlings or half foundlings that can be adopted on the black market like with gamete donation where the names of the adoptive parents simply appear on original certificates in lieu of the genetic parent or so they can be adopted legitimately without any record of the parents identities – either way the foundling is what people want when they are unable to produce their own genetic child because they don’t want interference from the genetic parent and they want no genetic family looming in the distance ready to steal the child away when they turn 18.

                  So sure I can see why women would not want to use a sperm donor who may or may not also want to donate his fatherhood once the child is born. But donating sperm is only half the process. I have no problem with the sperm donation part its just that the women would not want the sperm if he was not also donating the child along with it. They want him to abandon his offspring so they can have a little half-foundling, they don’t want the child’s father in the picture. They want their child’s father to abandon their child either so they can raise their child alone or because they have someone they think will be a suitable replacement for the abandoning father. How very presumptious of them to think they have the authority and power to simply replace the person that made the child with them. They may not be connected permanently to that man but the child is and really they cannot replace him with the person they are in love with. That is so totally shallow the best they can hope to do is raise them with the person they are in love with. Can’t they do that without taking the child’s entire paternal family? Why must they try to erase the child’s paternal family in order to raise the child with their romantic partner?

  11. Julie said: “Compared to the number of children place for adoption, I would guess (and I emphasize the word “guess”) that this is pretty small. In other words, it’s not being widely used as a way around the adoption process.”

    That is because the US has such an easy option to dismiss fathers rights – they could be wildly different in Europe…

    I do know that some countries in Europe if not most do not allow private adoption agencies to practice like they do in the US – Germany it is illegal to do a private adoption – it must go through the central adoption authority – and family preservation is the first option. I do think they have agencies linked to them but the system is definitely more concrete than the US with it laws different by each state. Germany also has a similar set up to Canada with monthly support, medical etc for mothers (single or wed).

    • There’s so much I do not know, I’m afraid. It is also possible (and this intrigues me) to give birth anonymously in France (and I think elsewhere in Europe.) As far as I know, no where in the US permits this. (But I could be wrong.) So there’s an instance where Eurpoean law–or at least French law–is less protective of the genetic connection than we are in the US.

      Perhaps it is a mistake to conflate the safe haven laws and the baby boxes. Though they are similar they operate in different legal and cultural contexts.

  12. Julie – childwelfare has an overview of safe-haven laws – what a mess – a complete and utter mismash.

    There will be problems with this system in the US it’s filled with flaws. What they do right though is that most require it to be a hospital or fire department setting.

    http://www.childwelfare.gov/systemwide/laws_policies/statutes/safehaven.cfm

    “In most States with safe haven laws, either parent may surrender his or her baby to a safe haven. In four States, only the mother may relinquish her infant. Idaho specifies that only a custodial parent may surrender an infant. In approximately 11 States, an agent of the parent (someone who has the parent’s approval) may take a baby to a safe haven for a parent. In California and Kansas, if the person relinquishing the infant is someone other than a parent, he or she must have legal custody of the child. Seven States do not specify the person who may relinquish an infant.”

    >>>

    “Before the baby is placed in a preadoptive home, 13 States require the department to request the local law enforcement agency to determine whether the baby has been reported as a missing child. In addition, five States require the department to check the putative father registry before a termination of parental rights petition can be filed.”

    • Thanks. As you say–and as we probably ought to expect by now–a total mishmash. The only thing good you could say is that it might be possible to look place to place and figure out what works well and what doesn’t and thus craft the best possible law.

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