The last post I put up was about the Kansas sperm donor case that has been getting a ton of press recently. Even made it to NPR. I’m aware that there are many comments and honestly, I have not had any time to even read them. I think I might be able to get to that today (the problems here being 1) I’m on vacation and 2) my family is sharing my computer.) But I wanted to push on just a little bit.
You can catch up on the discussion by reading the last post (and the comments– which case you’ll be one-up on me). But I can summarize the facts pretty simply. Angela Bauer and Jennifer Schreiner were a lesbian couple. They wanted to have a child. They advertised for a sperm donor on Craig’s List and William Marotta responded. The three adults made an agreement (which they have all abided by) that Marotta would provide sperm and have no parental rights/obligations. A child was born to Schreiner.
Eventually Schreiner fell on hard times and sought public assistance. Though the two women had split up by then, they were still coparenting. (Apparently there are a bunch of foster children in addition to the child at issue here.) Kansas decided to seek monetary contribution from Marotta–the sperm donor–on the assumption that he is a legal parent and hence has a legal obligation of support. It’s clear under Kansas law that had the insemination been done by a doctor, Marotta would not be a legal parent and so no support would be due, but this was home insemination and no doctor was involved. Thus, the genetic link may well mean that Marotta is a legal parent, the agreement of the parties notwithstanding.
I want to think a bit about aspects of this situation. How can we think about the problem presented. First and easiest, you could argue that DNA should always tell you who the legal parents are. If you do that, you get a simple rule: all of the details are irrelevant–agreements, doctors, etc. do not matter. The man who provides sperm is a legal parent–end of discussion. Marotta owes support.
One obvious virtue of this approach is its simplicity. But I know that many people here would find much more to recommend this approach–you can read a lot of discussion about this elsewhere and I do not mean to mischaracterize this viewpoint, but I think idea is that using genetics as the determinant of legal parenthood isn’t simply a convenience, it is somehow best for children (generally) to be raised by the people whose genetic material created them.
If you use genetics as the determinant of legal parenthood, this has the effect of shutting down a lot of (but not all) ART. For some, this might be a cost while for others this is a virtue. If you used genetics to determine legal parenthood, Marotta would have been recognized as a legal parent. Perhaps in some states he could the have given up his rights in favor of Bauer, but this would be a more complicated route. Which leads me round to a second thought.
As is also frequently discussed here, there’s an extensive industry in the US devoted to ART. It includes doctors and lawyers. Both seem to benefit from a rule like the one in place in Kansas and that is something to think about. Why does the inclusion of a doctor in the process change the legal outcome? If you have money and access to professional services than you consult a lawyer who tells you that you need to go to a doctor to have the insemination done and once the doctor is there, no legal problems arise. A lawyer might also be able to walk through the scenario I described in the last paragraph. This means that people with money/access will have an easier time of it. The idea that the ability to use ART should depend primarily on income/education/access seems a bit problematic to me, but perhaps this is no more than an manifestation of a truth in our world– money gives you choices. Still, maybe we ought to favor approaches that do not have this inherent bias.
To be clear, given the inconsistent patchwork of laws around ART and parentage generally, lawyers are often crucial players, and access to good legal counsel is crucial. But I don’t think that lawyers deliberately created this situation in order to benefit themselves. It’s a consequence of the way family law is done in the US–state by state–and the polarized nature of some of these issues.
The case here also leads me to think about the importance of private agreements. The adults here made an agreement and they’ve all stuck to it. This is in many ways admirable. Can you say that legal parentage follows from the agreement of the parties? (Sometimes I think it does under KS law.) Is parentage to be determined by private agreement?
One reason we might say “no” is that the child at issue is never a party to the agreement. That’s a serious problem. Indeed, most states insist that there must be review of agreements (like custody plans) involving children. But even if this view (not giving legal force to agreements about parentage) is common, many people probably do not realize this. That leads (at least potentially) to a problem–people make the agreements and they think they work. That’s exactly what happened here, after all. So people will make (and act on) agreements that turn out to have no legal force. This seems rather a problem.
I’d best stop here, I think. There’s more to say and all those comments waiting. I’m sure we’re not done yet.