VA Decides That Unmarried Sperm Donor Can Also Be Legal Father

In November I wrote about a case that had just been argued before the Virgina Supreme Court.   At issue was the parental status of William Breit.   He and his then-girlfriend, Beverly Mason, wanted to have a child.  They ended up using IVF.   When the couple split up, Mason tried to prevent Breit from having contact with the child, arguing that he was a sperm donor and not a legal parent.

It’s critical that they weren’t married–had they been married, he clearly would have been a legal father.  But Virginia’s statutory structure gave Mason a simple argument.   The statutes themselves are quoted in the earlier post, but suffice it to say that Virginia is one of those states where the statutes say that a man who provides sperm for use by a woman who is not his wife is not a parent.     That’s what was done here (argued Mason), so it would follow that Breit was not a parent.

Now as it happened Breit had a whole bunch of arguments for why this wasn’t the proper outcome in his case.  Breit acted as a parent for at least four months before the couple split up.  The couple executed a legal document acknowledging paternity after the birth of the child.   And of course, he can invoke genetic linkage.  (The last ought to be least important as all sperm donors can do that.)

Perhaps it is unsurprising, then that Breit just won in the Virginia Supreme Court.   If you don’t want to read the full opinion, there’s press, too.   As always, it’s important to look at the reasoning of the court as this will have an impact beyond the individual case.

It’s striking reading the opinion because except for the fact that Breit is male and provided sperm, the case starts like one of intra-lesbian cases.   Everything in the way the couple behaved pointed to the intent of the parties to be coparents, but the woman who gives birth invokes formal law to deny that result.   In response, Breit summons up evidence like that commonly seen in many lesbian parental rights cases–birth announcements, last names, cutting the cord.  Of course Breit also invokes the acknowledgment of paternity–and this is something no woman can do.

Ultimately, the court concludes that the “sperm-donor-not-father” statute doesn’t prevent the unmarried couple from voluntarily acknowledging the man’s paternity though it does bar a claim of parentage based on genetic connection.   (It must do the latter or the court’s interpretation would essentially gut the
sperm-donor-not-father provision of all meaning.)

Along the way the court suggests several times that the real point of the sperm-donor-not-father statute is the protection of married families using donor sperm.  In those cases, the statute prevents the donor from interfering with the husband/wife/child family.   But I’m sure this statute is also invoked by unmarried women.   It seems to me the statute would still work for them as the court is clear that donor cannot use genetic testing to establish legal parenthood.

Two other features of the opinion are interesting.  First, there’s a  brief equal protection discussion–can you treat married men and unmarried men differently with regard to presumptions of parenthood?   The answer, says the court, is yes.   There’s an interest in promoting marriage and so you can give greater protection to parental status of married men.

Finally, Breit invokes his constitutional rights as a parent.  The court agrees with him on this point and in doing so, they recognize him as a parent for constitutional purposes.  This is a critical point to me–one which I have been thinking about for a long time.   In recognizing Breit as a constitutional parent, the Virginia Court relies on a much older US Supreme Court case–Lehr v. Robertson (I’ve discussed this before on the blog and it should turn up if you do a search.)   There’s even a short discussion of the rights of the child, which is a relatively unusual thing to see in a case like this.

Ultimately the court here concludes:

 Simply put, there is no compelling reason why a responsible, involved, unmarried, biological parent should never be allowed to establish legal parentage of her or his child born as a result of assisted conception.

There’s probably something for everyone in that statement.

 

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83 responses to “VA Decides That Unmarried Sperm Donor Can Also Be Legal Father

  1. there is a very significant way that Breit differs from some of the other cases on this board; the fact that he is a genetic father means that the child would have been aware of his absence when growing up.
    I agree that this difference is not reflected in the law.
    I also find it apalling that the law exists independent of the consent of the sperm donor.

    • You are right that he is genetically related and I think the conclusion you draw(that the child would have been aware of his absence) is interesting. You are right about that, too, of course, but you’ve spurred two other thoughts.

      First, the child would be aware of the absence, but what meaning would it have? This is a question we also talk around but perhaps do not directly talk about enough. People have different ideas about the significance of that absence and I don’t quite know what makes it seems so important to some people and not so important to others. Surely at least in part it depends how the society in which the child is raised deals with the absence. What I mean is you could make a child think it was an important absence or you could help a child think it was less important. I think it is socially determined. I do not mean to deny that much in our society points towards it being important. And I do not mean to deny that to many people it is important. I just want to suggest that it has no objective or absolute meaning–it only has the meaning we give it.

      Second, if he were not genetically connected the child might still become aware of an absence. It would be the absence of the person my mother planned me with and worked with. Perhaps it is not so obvious, because there doesn’t have to be such a person where there does have to be a genetic father. But again, the meaning the child gives to this absence probably varies and isn’t absolutely or objectively fixed. I think many of the same people who think the genetic link is important probably think the absence of this person would be trivial. But I am inclined to think that it could also be meaningful. If people want to know their own creation stories–who was there, what was happening–than this person, genetically related or not, is important. Again, I think this absence would have the meaning we give it.

      • There you go again. Trying to turn an actual concrete loss into something they did not need anyway. You sound manipulative when you do that. Not that you are manipulative it just comes off sounding that way by virtue of telling someone that something they have but that is kept from them is something that they don’t really need and should not want anyway. It sounds manipulative to say that the person might not care as much about that loss if they are carefully taught that the presence of that person in their life is neither here nor there and that society makes much ado about nothing when it laments the absence of a child’s bio parents from their daily lives as parents. You mean to just constantly tell them that the rights they lost are nothing to be missed anyway despite the fact that people all around them are allowed to exercise those rights allowed legal recognition of kinship with their bio families, allowed access to birth marriage and death records of all their relatives, allowed a truthful medically accurate birth record, allowed to live authentically identified as the child of their bio parents, allowed to live authentically as the step child of their parent’s spouse etc etc. Force feeding them a line of utter crap about how they don’t have to perceive the loss as a loss it just horribly manipulative. Like saying that women should not have minded not being allowed to vote because their views were of little significance in the world of men and politics their world was home and hearth. Like saying that the back of the bus is just as comfortable as the front of the bus for black people – or don’t mind not being allowed to to go to the white school its not like you’d ever have the grades to get in anyway you are not missing anything. Never mind that right to freedom of the press when all you read is fashion magazines what difference could it make to you if they are burning books and censoring the news.

        Makes no difference whether someone perceives their rights as essential to their daily existence or not Julie. Their rights are violated – don’t play like you can make that more palatable by shifting societal view points. You can’t fix it unless you equalize the world to align with the fewer rights that they have. Until your willing to put all other minors in the very same boat with donor offspring and adopted people, locking their records away or falsifying the preventing them from legal recognition within their bio families etc then just table the hope that they can be brainwashed into thinking that there is no loss. The loss is as obvious as their records are hidden. Can’t parlay that into benefit, no way no day.

        • I surely don’t mean to sound manipulative, but can we agree that the meaning people assign to the various absences in their lives vary? For some people missing the genetic forebear is very important, but for others it is not so important.

          And if we can go that far, can we also agree that a whole lot of things shape the way people react to the absences, including the reactions of the people around them and the society at large?

          Imagine that being on the back of the bus were universally acknowledged to be better. Perhaps imagine that there were more comfortable seats, food service, that there was more legroom, and even that it was safer. Then we’d all fight to sit at the back of the bus. But everyone understood that being forced to the back of the bus was a mark of inferiority–a reminder that you really were second-class. It went along with having to give up your seat if a white person wanted to sit. WbearI mean to highlight is that our understanding of what the back of the bus meant had something to do with how people experienced that. It was meant to be degrading and it was.

          To take a different example, I think a society could make people feel really bad about having to wear glasses. This is a mark of imperfection, after all. It’s not impossible to imagine you could attach all sorts of negative social meaning to it. Or not. And it would matter.

          That’s really what I meant to suggest. The meaning we give to various facts–how important or defining they are–isn’t always fixed.

          • And again you are either missing the point or avoiding it. Which is it? You responded by repeating what you meant to suggest, which was not lost on me – that our feelings about a loss are to a large extent the result of societal pressure and stigma – shift societal thinking remove the stigma lessen the sense of loss. All crystal clear. I asked you to address the fact that you are glossing over the fact that it is indeed a loss in the first place and an unnecessary non-accidental one at that. It is a loss that someone paid to have a child experience, paid to have an entire family of people experience for what is essentially entertainment purposes. They paid to have a child experience a loss for their own enjoyment, so they could have a child all to themselves and not have to share responsibility for raising that child with the other person who reproduced.

            Along with glossing over the loss of the absent bio parent and that person’s relatives in the social sense as family, you also gloss over the loss of them as legal family – gone with that are all kinds of legal rights and advantages that cannot reasonably be duplicated with applying those same rights and benefits to a group of people who are not genetically related and are therefore of no medical significance and are not an incest risk.

            You are admitting that indeed there is a loss experienced. Thank you. Let’s talk about why you are ignoring the fact that it is unfair to do that to those people and that it results in their unequal treatment. Again it matters not how they perceive that loss. You could be tremendously successful in re-educating the world not to care about that loss and still there would be that small issue of their unequal treatment and violation of their civil rights.

            I don’t think voting is a big deal. I have not voted for anyone since I voted for Clinton when I was 18 years old. I’m lazy. I have a big mouth and don’t show up at the voting booth to back it up. Would it matter if someone took away that right to vote even though I don’t care about it? Hell yes it matters and you bloody well know it does. So answer to that. Even if you make them not care about the loss what is your excuse for allowing them to be mistreated that way when not everyone else is?

            • I think there are real losses (whatever “real” means–perhaps historically documentable? And whatever it means to call them losses) in both cases. There are important figures from the child’s past/present who aren’t going to be there–the person who planned and facilitated the pregnancy/birth/early days of the child’s life, the person who provided the genetic material. Is this what you want–for me to agree that in both cases the losses are real?

              Is the absence of the person important to the child? Perhaps we agree that the answer is “maybe.”

              Then there’s the question of why the person is absent. Did they agree not to be around (the sort of classic sperm donor )? If so did they do so for money or for some other reason. Were they forced out (the person who insists the other can no longer see the child)? Did they die? I think in helping the child cope with the absence (if the child needs to cope) the circumstances might be important. But I’m not sure I’d say there’s a better/worse here.

              And the two things are (in my mind) somewhat linked. The more likely the absence is to result in harm, the more problematic taking money to create that situation probably seems. So for me, if a fully bonded psychological parent took money to walk away from the child, I’d find that appalling. But if a sperm donor takes money with the understanding that he’ll be a a known but non-parental figure in a child’s life, that’s less troubling to me.

              Would I prefer a world where there was no money changing hands? Probably would. Do I draw the line at selling children/parental rights? Yes. But you and I understand the meaning of various circumstances differently. So we don’t agree on when this is happening or which things count as what.

              • This is a loss for the adult.
                Highly unlikely that the child would experience it as a loss. Most likely it would not know the difference.

                “the person who planned and facilitated the pregnancy/birth/early days of the child’s life,”

                • I think that’s just your assumption–that children wouldn’t experience it as loss. Many children are very interested in the stories of the time they were in mommy’s tummy and those stories often include other people. You can conceal their presence–you can edit your stories. But we’ve agreed (I think?) that honesty is a good idea. So if you were honest there was this other person who did all this stuff. Where are they now? Why didn’t they stay with me? There was another person who changed diapers, got up in the night, whatever it was. Wouldn’t at least some children wonder about that person? (Remember this is not a nanny–not hired help.)

                  I’d say it is a loss you can conceal from a child, but I’m not sure that makes it okay to do so.

                  • evidence?

                  • you want evidence on my side- children part from loving non-parental caregivers like nannies and nursery school teachers ALL THE TIME with no adverse effects.

                    the idea that children would differentiate between paid and non caregivers based on adult financial transactions that they do not understand, does not seem realistic to me.

                    In fact some children do occasionally bond very strongly with a paid caregiver and do suffer when the relationship ends. But we do not see this as a reason to give the paid caregiver parental rights.

              • No. Now you are just playing games. Again it’s not the absence that is the harm it is the objectification and the loss of rights. Why should someone be allowed to do that to a child?

                I want to embrace your idea about society and stigma and feelings of loss and I want to run with it. Why don’t we get people to think about being childless differently and not think of it as a loss because in their case they are really pining away for something they never had to begin with so it is not a loss at all actually its pure want.

                Your efforts to get people to diminish the importance they place on being responsible for our own offspring involves getting people to feel good about the absense of actual living breathing relatives and real legal rights.

                It would be much more logical and efficient to teach people to get over childlessness than children to get over being locked out of their bio families because they are dealing with the absense of actual people who really exist

                • I agree with you that we should also try to destigmatize being childless. There are people who have children because they think they should–and without any thought about HOW they have children, this is not a great thing. I don’t think these are mutually exclusive options. We can do both.

                  The point about objectification is different. I don’t really care about objectifying sperm and eggs, it’s true. Probably time to separate out that conversation, but of cousre, it isn’t really separate. I don’t worry about it because I don’t attach the signficance to the genetic link that you do.

                  And I don’t think being a sperm or egg provider for someone else is irresponsible. Someone will use the material to deliberate create a child who will have inolved adults functioning as parents. To me, giving over your sperm is not like abandoning a child on a doorstep. Neither is it like engaging in casual sex with no thought for a child who might result.

                  • I suppose that this is a side point but I’d say it actually much like abandoning a child on a doorstep. You have absolutely no idea who the people are who will be raising the kid, none whatsoever. How terribly irresponsible! Would you even hire a babysitter for one night who you had no idea who they were?
                    Regarding casual sex with no thought for a child- I got no problem with that, as long as you do think for the child once it actually exists. That is responsible.

          • the meaning varies but why should whatever it means to YOU, create the law for everyone else?

            • I didn’t mean to suggest that I get to make the law for everyone. I just meant to suggest that we need to acknowledge that the meaning varies and that perhaps we should take that (the fact of variation) into account. We might also think about how/why things vary and consider what we ought to do about that.

              • but that’s exactly what you are doing when you insist that genetics should count for nothing. Because it means little to you, it should be completely eliminated by the law that affect millions of other people, (in my opinion the dominant culture)?

              • I think we ought to consider why it’s so important to people to take half a child’s family away and mull over ways to get them to work through those issues without violating other people’s civil rights. It’s better that they mourn the fantasy loss of a fantasy child than a child mourn the real loss of real rights and their real bio parent. Right? Just do the math

          • So for children who are blinded by their custodians to make them better beggers in India it might be helpful to shift societies view points about the vision imperfection so that the child would feel less self conscious about using a cane and maybe stop bumping into walls as he tries to flee from the captors that blind him.

            I’m sorry but you cannot compare feelings of loss caused by heriditary nearsightedness and the deliberate act of contracting with someone to create and then abandon their offspring. If nobody is trying to make the kid loose their eyesight for entertainment purposes then the analogy does not hold up.

            That is what it is – entertainment purposes. Desiring a child but wanting that child all to one’s self without any involvement from the other person who is partly responsible for putting that child on this earth. They want the child too loose, to have less, to be unloved and unwanted by the other bio parent. They want them to be excluded and shunned by that bio parent and all their relatives. This is such an unloving act and people have the gal to look a kid square in the eye and say they were lucky to be so wanted.

            • I’m sure we agree that deliberately blinding a child is cruel. We don’t agree that using third-party sperm is cruel, though. (You think it is and I do not.) And I suspect that almost everyone will react to the deliberate blinding and say it is cruel while you will find a range of reactions to the use of third-party sperm.

              Now I think subjecting a child to deliberate cruelty is a bad thing and leaves deep scars on a child. Again, here we probably agree. And most (let’s hope nearly all) will agree–subjecting children to deliberate cruelty is wrong.

              But (just to close the loop) we don’t agree that that’s a fair description of using third-party sperm while we do agree that’s a fair description of deliberately blinding a child.

              This is because we disagree about the ultimate importance of the genetic connection. I’d say that to the extent that is a loss, it is orders of magnitude different from losing eyesight. You might say those are essentially the same?

              But all that said, I do think we ought do what we can to make the world easier to negotiate for those who have lost their sight–no matter how they lost it. I think we can stigmatize blindness or we can refusle to do so and what we do matters to people who are sightless. So, in response to what you say at the beginning, it might be helpful to shift our messages about sightedness.

          • It would not matter how comfortable you made the back of the bus. White people were allowed to sit anywhere on the bus they wanted and black people had to sit only in the back. You could make it first class back there all you want – comfort is not what was at stake, freedom was at stake, equality was compromised, differential treatment was the problem and you can’t fix that by making discrimination a more pleasant and enjoyable experience for the people being discriminated against.

            I know you get that. You are too radical a person not to get that. I suppose you are just too close to this issue .

    • I wanted to reply separately to your last point–also a good one. I think the law as it was drafted simply didn’t contemplate a situtation where an unmarried couple would use IVF. If you only think about married couples, it works better–the husband who provides sperm is a father. If the sperm comes from a man not the husband than the man is not a father. And how many men provide sperm for a married couple intending to be the father? Not too many, probabaly, or at least that was what the legislature thought.

      But then you do get a case like this–an unmarried man acting like married man rather than like a sperm donor. I wonder what the court would have done had it not been for the acknowledgment of paternity? That gave them a good way out of a difficult situation.

    • I agree. I wish the law were written so that a man is only legally considered a sperm donor if he actually signed consent to be a donor. This can also cause problems right now for men whose sperm gets mixed up and given to the wrong person.

      • I think that in some states the law is as you suggest (though right this minute I cannot think of one where I’m sure that is the case.) In some the presumption is the other way around–a man who provides sperm for the insemination of a woman not his wife is presumed to be a sperm donor unless he signs something that says he is not. (Kansas, maybe.)

  2. Still, thinking about it, I’m guessing Breit was treated preferentially when compared to lesbians claiming co-parenthood based on the same criteria he used. Could this qualify as out-and-out- prejudice? Possibly.
    On the other hand, the judges invoked what they saw as the rationale behind the law. This to me is an implied admission that the strict wording of the law is flawed. The rationale I find reasonable- following its natural conclusion it would affect the ability of all infertile men to reproduce outside of marriage.
    This is not applicable in the case of an anonymous donor.

    • It seems to me that the critical point for the court was that the couple had executed a voluntary acknowledgement of paternity–something only a male/female couple can do because of the way the statute is written. You could have a similar statute that allowed any couple to execute a voluntary affidavit of parentage after the birth of a child that would establish legal parentage in the person who does not give birth. I think that might be a good idea. But VA has no interest in that. I do think they proably see this as a way to protect men who aren’t married and yet a forming families using ART.

  3. I’m curious on how you chose to title this post.
    “sperm donor can be a legal father” the way i see it, sperm donor is a legal category that excludes legal fatherhood. if he is a legal father than he is not a sperm donor and vv.

    • my guess is that it reflects an anti-male bias, something I have previously complained about. You have suggested that Breit should be treated similar to a lesbian ex partner. Yet you consistently refer to those women as lesbian mothers, no matter what the legal status. Why not at the very least offer Breit the same minimum of respect?

      • I should have. I think Breit ought to be recognized as a parent (given the facts as I understand him) because of the sum of the conduct of the parties here, and in particular because he really did (to my mind) take on the role of parent. Not the same rationale as the VA court, but the same result.

    • Fair question. Under the definition of VA law, he is a sperm donor. The woman argued that was all he was and the wording of the statute, taken in isolation, seems to say that the categories are exclusive. He argued that he was both a sperm donor and a legal father and I think the court concluded he was both. In sequence, first he is a sperm donor (which means he cannot claim parentage based on genetic connection) and then he is also found to be a legal father (by virtue of the acknowledgement of paternity.

      Still, perhaps it isn’t the best title. I try not to get hung up for too long thinking about the titles or I never get started.

      • Husband’s don’t have the right to be the legal parent of their wive’s children unless they are biologically related. If they are not biologically related then the wife can point that fact out to the State and the birth record will be corrected to reflect the identity of the man who passed the paternity test. The spouse of the mother or father has no real right to be the legal parent of a child that is not their own offspring. It is not like they’d get to be named as legal parent of their wife’s child by another man if the wife objected and preferred the real bio parent be named as legal parent. She could not just randomly pick some other stranger who was not related to the child either they’d have to sign an acknowledgement of paternity which is specifically about being related to the child independent of relationship with the mother like donor or boyfriend or whatever.

        Really when you boil it down its like nobody really has any rights or obligations uless the mother says so and that is not right clearly you’ll have kids that wind up gypped on the whim of their mother.s

        • Your first statement (in its unmodified form) is incorrect, I think.

          I think the presumption that a husband is the legal father of the child his wife gives birth to is nearly universal in the US. In fact, it is the reason most married men are legal parents, because we don’t generally do blood tests on infants.

          The presumption can sometimes be rebutted and the conditions under which that can be done varies quite a bit state to state. In part it depends who wants to undo the presumption (the possibilities being the husband, the wife or the third-party.) But in a number of states, I think it is not be rebuttable if the couple had agreed to use ART with third-party sperm. Indeed, I’m pretty sure that at least some states have specific statutes to this effect. The whole idea of these statutes is to protect the rights of the husband in a couple who is using third-party sperm and, as the Virginia court notes, they would offer no protection if you could overcome the presumption with genetic testing.

          • My point is that if the woman who gave birth does not want her husband to be named father of a child that is not his offspring – she wins he cannot force the issue nobody owes him that kid. He does not have the right to become the father of a child that is not his own offspring by pure virtue of the marriage…..its all about whether or not the mother wishes to allow him to be named father. You know it. It is not his right, its her prerogative which I think sucks but I imagine you think is just peachy. Her spouse if unrelated has no claim to her child independent of her permission where her spouse who is related to her child would have claim to their child no matter what she wanted. Genetics would win out if in court she wanted to say her spouse should not be named father. DNA would win. Marriage would loose absent DNA evidence if she wanted to lock her spouse out.

            • Actually, I think if the couple was using ART most states do give him exactly that right–he can insist on being the legal father of the child even though there is no genetic connection and his wife doesn’t want him to be. Indeed, I think he has to be the legal father of the child, even if he doesn’t want to be, under these circumstances.

              If the couple was not using ART, then I think your description is generally accurate–there’s a presumption of legal parenthood that can be rebutted under circumstances identified in each state’s statutes. (They do vary.) But if the husband and wife both want him to be the legal father then it is typically impossible to rebut the presumption. Even with genetic evidence.

      • When I skimmed sperm donor laws by state, I noticed that the term sperm donor was not defined.
        Could be had I looked more in depth it would have been… don’t know. I’m not a legal scholar and often have trouble finding the right info. So anyone feel free to correct me if I am wrong.
        In any case if the word sperm donor is not defined, than we should go by the normal use of the word donor. And a donor is someone who willingly gives something to someone else. (A formal consent is therefore necessary). A donor who sets aside sperm to create his own child isn’t donating anything to anyone. So he isn’t a donor at all.

        (Of course if I was drafting the law I’d include other conditions as well, I’m just talking about the plain meaning of the word.)

  4. Why do we have the sperm donor law at all? I mean why don’t we want everyone to be responsible to and for the upbringing of their own children in less in case of emergency and then to be handled through the courts like formal adoption or guardianship? How do children benefit from not having their biological parents be responsible for them? What’s the point? And if its such a great and dandy idea then why not apply that rule to all people with offspring rather than just a portion of people with offspring? You wind up with some offspring having rights and expectations to their bio parents and family while other’s don’t. What the child and their relatives loose by not being considered legal kin is significant and these are not losses that can be made up for by unrelated individuals doing the work of raising children and behaving as close kin. If not having any rights to bio parents or to be kin is working out so super for donor offspring then why not take that right and expectation away from all children so that children of unmarried bio parents especially have no right to support from their bio parents. Lets make parenthood be entirely based upon who can provide receipts for proof of purchase

    • Actually this opinion does discuss why we have sperm donor statutes at all.

      They were primarily enacted to help married couples dealing with issues of male infertility. If these couples had access to third-party sperm then they could raise children within their families. But no one in that configuration wanted the legal parent to be the man who provided the sperm–the idea was the legal parent would be the husband.

      Now a husband was generally presumed to be the legal parent of a child born to his wife, so this didn’t seem all that odd, really. But people worried that the sperm donor might interfere or that someone might go back and seek support from the sperm donor. The prospect that this could happen made the whole idea of using donor sperm less palatable. And the solution to that was these “donor is not father” statutes. That’s why we have them.

      Of course, much has changed since the early days of these statutes. Many unmarried couples (same and different sex) use third-party gametes as do single women. And there are egg providers, who are often analogized to sperm providers. But the core idea remains the same. The whole point of the statutes is to clearly detach legal parenthood from genetics. (I realize that you think this is a bad idea, but that is essentially what they are for. )

      • Why did they suddenly decide they needed to help married couples dealing with issues of male infertility? It surely was always possible, it didn’t take any new technology to allow someone besides the husband get a woman pregnant. Did something change that made couples feel it was OK to have another man be the father, or are more people facing infertility than did 50 years ago?

        • Yay John Howard. Score/

        • In the book “EAT PRAY LOVE” the traditional healer tells men she will cure their wives of infertility (apparently male infertilitiy is never acknowledged in that culture). The wife comes for treatment. The treatment is one of the handsome young unemployed men hanging around. 9 months later everyone is happy. Of course no one ever tells the husband. The book didn’t say whether anyone ever tells the kid.

        • If you take the long historical view, than if another man got the woman pregnant, the husband got to claim to be the father, too. That’s the original marital presumption. I think the more specific statutes arise around the time the formal practice of ART arises and the statutes are clearly designed to facilitate the use of ART. The existing presumptions offered some protection, but there was concern over KNOWING for sure that there was no genetic connection.

          • Are you and ki sirita implying that traditionally, it has always been acceptable to have another man be the father and the original marital presumption was in place to facilitate using other men to impregnate wives when the husband was infertile, so that they could “claim to be father?” (why is that something anyone would want to do, and what gives anyone the right to “claim” a person as their son or daughter?) Ki sirita suggests that it has been acceptable to be secretly practiced by wives seeking to become pregnant who would then (“of course”) deceive the husband, but I think that’s evidence that it was not acceptable at all, and was in fact adultery, considered a major crime and mortal sin everywhere that practiced marriage. And I don’t think infertility was very common until just a few years ago.

            • I think actually me and Julie have an opposite perspective on this. As I understand Julie, it means that historically genetics was not so important as we think it was.
              I believe the opposite- it was so important, to an extreme. It was so important that the consequences of discovering were horrendous. Divorce, stigmatization, outcast, even murder. It was so important that it became necessary to cover up and lie.
              Julie writes “the husband got to claim to be the father, too.” Stickler for words that I am, I would argue that this is the wrong phrasing. The husband didnt GET to be the father. He was deceived into it, like it or not.

              • OK, good. It seemed to me you were disagreeing or deflecting my comment and questions above instead of giving me another “Yay! Score!” which would have been too much I guess. But so we agree. So my question remains, what happened, what changed? Infertility or attitudes or technology or what?

  5. Hi M: The reason that protections exist for sperm donors is that few men would be willing to donate if they would face paying child support and other parental obligations. I imagine the same reluctance would befall potential egg donors. The sperm and egg donation system as it stands would collapse if the donors become consistently held liable for child support. Of course, there are those who would like to end sperm and egg donation, but that’s another matter altogether.

    • Twiso
      So I guess I get what you’re saying. But Twiso at the end of the day, just regular males and females who have not taken responsibility for raising the offspring they created to adulthood. Society frowns on people who don’t take care of the children they put on this earth its generally considered a good thing to try and prevent yourself from having offspring that you’re not prepared to take care of yourself and if you have some offspring anyway and can’t take care of them, its generally considered tragic that other people have to step in and do that job for them. Its really sad that there are children of one night stands there are all kinds of public service messages about responsible sex and procreation, yet for some reason we actually encourage people to do this really irresponsible thing and make a bunch of kids they have no intention of taking care of. I mean why are we essentially paying folks to deliberately be irresponsible and manufacture a tragedy? It almost seems like it’s being done as a service for people who would not easily be able to find an irresponsible person to have a one night stand with. Like people are generally too considerate and responsible these days to just make babies and abandon them so we get to the point where we are paying someone to be a lousy jerk and abandon their kid.

      Anyway if it’s a good idea for the men and women we call donors to have offspring they don’t take care of and if it is such a benefit to their offspring to be abandoned and have all records of their parent’s identity hidden so they can be assigned to play the roll of child to whomever paid the fee to get a baby – then do you think we should just expand that policy to all people with offspring so that at least all offspring will be treated equally and all people with offspring will have no legal obligation to care for them unless they intend to and feel like it? That would be fair. Whatever is fair is really the best thing right?

  6. So does it even matter if Breit is indeed the genetic father, or could he have used a sperm donor and make the same claim for parenthood because of the four months of co-parenting and the document acknowledging paternity? Did they even do a paternity test in this case, and would the outcome be any different if it turned out he wasn’t the father?

    • Oh that just makes me ill. Stop.It must matter. It should matter.

    • Excellent question. I think my first answer based on opinion is that DOES NOT matter that Breit is genetically related. The court is pretty clear, I think, that a sperm donor cannot claim legal parentage based on the genetic connection–because that would just undo the sperm donor not father statute entirely. (I’m my falso not persuaded that the four months of coparenting matters, though I’d like to think it did.)

      Crucial is the execution of the affidavit of paternity, I think. Now we could wonder about whether you could properly execute that affidavit if you didn’t have the genetic connection to the child. This probably depends on exactly what the affidavit says.

  7. The mother agreed he was the father. There are medical records to prove IVF. If he wasn’t the genetic father she would have certainly claimed that instead of this convoluted process.

    • But that does raise the hypothetical question what if he indeed turned out not to be the genetic father, how would the court decide? when men previously acknowledged as fathers attempt to escape paternity courts dont let them off the hook easily. why should it be taken more seriously if the mother attempts to revoke legally acknowledged paternity like mason?

      • If you look towards the bottom of page 3 on this document you’ll see that many states don’t let you revoke a VAP based on genetic testing. http://www.clasp.org/admin/site/publications/files/0333.pdf Or at least they make it hard to do so.

        I don’t think the court in this case put weight directly on the genetic connection. If they did that, any sperm donors could do what Breit did and they do not want that.

        • The link stated that “the signed acknowledgment can be challenged
          only in court and then only on the basis of fraud, duress, or material mistake of fact.”
          If this is the case the mothers case should have been thrown out of court from the get go as she did not allege any of the above.

        • Why? Why do we not want people to take responsibility for raising their offspring? In what way is that beneficial to their offspring?

  8. Hi Marilyn: You make some good and profound points regarding donation, but I want to address this one: “It almost seems like it’s being done as a service for people who would not easily be able to find an irresponsible person to have a one night stand with.”

    Assuming that we’re talking about a woman seeking sperm donation, I don’t think the issue is that the woman is unable to find a one-night stand. There could be several reasons that a woman wishes to avoid a one-night stand; among them are: 1) Lack of awareness and testing of the partner’s genetics and sperm motility, 2) Fear of running into the man a few years later with the child in tow (I do believe there is a Heart song on this very topic), 3) Concerns about the physical and personal safety of going to a private place with a stranger, and 4) Sexuality ethics.

  9. Twiso
    I admit, you are correct it is not the inability to have a one night stand, it’s a prudent choice to avoid them because they are a health and safety risk for sure. So in fact gamete donation seems almost like it is being done as a service for people who want the outcome of reproducing with a reckless and irresponsible person without any risk to their own personal health or safety.

    Fertile women and potent men who want to have and raise their own offspring find themselves stymied if they don’t have a partner to reproduce with or if the partner they have cannot reproduce with them. Really why should they have to adopt a child when they are perfectly capable of having one of their own, it’s not like they have a fertility problem they just are not able to reproduce on their own or with the person they care about. Gamete donation is a safe way to meet people who are not willing to take responsibility for the children they create so that people who want to raise children can raise them all by themselves or with someone they love.

    I have an idea what if instead of gamete donation we had like local chapters of fertile women and potent men who wanted to raise their own offspring but were either single or paired up with someone who was sterile or barren? So instead of picking an irresponsible person to reproduce with you could pick another responsible fertile/potent person like yourself of the opposite sex that wanted to raise their own offspring but were stuck in a relationship with someone unable to produce a child with them or who were single. You’d pick someone who lived near you who was willing to take responsibility for the children they create, who instead of committing to be absent would commit to be present! The only people contracting away parental responsibility would be their spouses – rebutting the marital presumption in advance and agreeing to cooperate in raising the child with their spouse but as a step parent so that both bio parents could fulfill their responsibilities and the child would loose no rights or social relationships with bio relatives and would still get to have social relationships with their parent’s spouse and all their relatives.

    That would really be the adult thing to do. If you think about it it makes a lot more sense to cooperate so the child gets all the love and care they deserve. It’s crazy to want the bio father to be absent. Why would you want a child to suffer the loss of half their rights and half their relatives? For what? What do they get that is so great in exchange for suffering that loss? A relationship with their parent’s spouse? They could have that still if their bio parent did his job. They don’t have to bug out and bail just because the kid’s bio father loves them and wants to take care of them. And if they were the kind of jerk who would bail if the kid’s father behaved responsibly well then who needs such a shallow person around anyway?

    • Where would everyone live? In the same house? If not, which house would the child live in? Or would the child shuttle between houses? What if one parent or step parent gets a job in a different city? Would everyone move? Or, would everyone be required to find a job in the same city?

      • Joint custody arrangements are the default for parents who don’t live with one another and they are ordered to cooperate and work it out find an arrangement that works for both of them that respects the child’s right to caregiving and resources equally from both. If one of them wants to undermine their own relationship with their offspring by moving away it will mean that one parent winds up with more caregiving responsibility than the other so the amount of financial support owed by the one who moves away increases to cover the cost of day care and all that. The most common thing to do when parents are not together is for them to cooperate in some kind of shared custody arrangement. It’s pretty odd to throw a child away just because you are not married to or in love with the person you reproduced with that is their other parent. It’s pretty odd to only be willing to take care of your kid if you get to pretend that their step parent is their parent in order to keep your marriage together. None of that protects the child they get nothing from that. And the amount a child looses in those arrangements is enormous.

        • So you want to take the problems of divorce and double them. In one scenario a child is happy with two loving parents – one genetic and one not genetically related. In the other scenario you have four adults fighting with each other over one child. But you prefer the second scenario. What kind of twisted reasoning does it take to believe that the second scenario is better for the child than the first one?

          • Kali honestly how spoiled and bratty that sounds. I don’t want to take the problems of divorce and multiply them I want to take the solutions and apply them so that all minors are treated equally by the law.
            It is not necessary to excuse one of the child’s parents from taking care of their offspring in order to strengthen the relationship of the other parent who wanted to have a child with their spouse. That couple does not HAVE to have the child all to themselves. It is possible for them to put their relationship second to the child’s rights to have both of the people who made them take an active roll in raising them and for them to be a legal member of both their families. It is not twisted to expect people to behave rationally and maturely and put the child before their marriage. Their marriage will NEVER NEVER NEVER in a million years be as important as the relationship between a child and the individuals that created them. Their relationship with a spouse should never be a priority over the child’s relationship with the individuals responsible for putting them on this earth. If your going to involve a third party in the child’s live allow that person to be who they are and not try to force them to replace the other parent. There is no need to do that, its a novelty to do that it serves the mariage and the spouses not the child. The child looses so much. Cooperation should be expected of parents not foot stamping and playing tug of war “mine no mine” Figure it out make it work that is their job come up with a solution that involves both parent’s equally without taking half the child’s family away. Cooperation is always better than a total lock out. It breeds resentment. I know plenty of kids that were raised in those perfectly happy stable homes told early and often who even advocate publically in favor of donation so long as at some point the records are available and behind their mother’s backs they search and resent them and their spouse who they love and call dad but in front of their parent and social parent they claim not to care. It’s what they paid to hear. They paid for a child to play a roll as a child of their marriage and they get their money’s worth every time. Play the roll of their child. Can’t actually be their child, its not scientifically possible no matter how much the kid loves the social parent they are not their child. They got permission from the parent that is absent.

            • You have to deal with the reality as it is in the world, not in your head. The probability of a stable, happy life for a child is much higher in the first scenario than it is in the second scenario. You think you can will the second scenario to be perfect just by demanding it. That is what is spoiled and bratty. Imagine what it sounds like when someone says that there should be world peace, so we should disband all armies. Or there should be no crime, so we should disband all police.

              • Exactly, Marilyn is banking on the second scenario being perfect because she doesn’t want to come out against lesbian couples being allowed to make babies using donor gametes. But it is still violating that child’s rights even if it is as perfect as Marilyn demands it should be, and there is no right to intentionally create children at all, so how about scenario three, where the “two loving parents” become parents through fostering needy children, or don’t become parents at all? The consciousness that is saved from scenario one or two can live in a child born to loving parents.

                • Wow. So you would not even bother to try to come to some common ground for your own child? You would sooner prevent the other parent from contributing to your child’s health safety and welfare because you don’t want to bother trying to comply with the the law for the child’s benefit? Why should anyone look at your relationship with a spouse or lover as being unbreakable and permanent? At least when trying to cooperate with the other parent you have something in common that sticks you together even though you may not be in love with them you have something in common and its much more likely that cooperation would be possible with the other parent than with a spouse in the heat of a divorce.

                  Tell me why are you not willing to bother and why are you not concerned with the rights the child looses. I’m not suggesting that we get rid of the police because everyone will behave far from it. I’m suggesting that the laws be equalized tightend up an enforced specifically because people are not complying and do things like agree not to take care of their offspring under private contacts

                  • If we don’t ban it, then sure, holding fathers responsible is the next best thing, but the soul would rather exist in a body born to married parents, and society is better off when that happens, so why not ban it?

                  • What the soul wants is a matter of religious faith and thus not relevant to US law.

                  • We have a Constitutional obligation to secure the blessings of liberty to posterity, which means to care about future people that haven’t been born yet. That’s the sense I’m using soul: those future people don’t exist yet, they only exist in some abstract general and perfectly equal potential state, as souls waiting in line to exist on this earth. We have an obligation to consider what they want and don’t want their existence to be like, and require their parents to consent to exclusive marriage with each other. (But not go so far as transhumanist Julian Savulescu says, about an obligation to do genetic screening and enhancement, because everyone has a right to marry and procreate with their spouse and that’s the basis of equality and rights.)

                  • Still incorrect. Constitutional rights interpreted as applying only to persons already born.

                  • The constitution doesn’t just lay out some rights, it also gives us obligations to secure the blessings of liberty to ourselves and our posterity. Our posterity is equally the beneficiary of the Constitution as living people are, but of course people do not have the same rights at every age or every stage of existence or past or future existence. But just as we can’t abuse children just because they don’t have a right to vote, we can’t abuse future people just because they don’t exist yet.

                • Egad John you make it sound so much more sinister than it is. I have thought about this very carefully and the most efficient and logical course of action is not to go around banning this or that but rather identify the obligations people should have for the offspring they create and hold them to it. Secondarily follow a standard protocol when they don’t take care of their offspring to ensure that the reasons for not taking care of the child don’t smack of proprietary behavior of commercialization or trafficking etc and t make sure the people taking over raising the child are fully checked out.

                  I’m truly not concerned with what people do before there is a child in the mix. How they come to reproduce is irrellevant to me.

  10. My kid splits time between here and her father’s house. I would not look for or accept a job that took away her right to a relationship and care giving by her father. He and I may not get along but I’m not a monster. I would never sabotage her relationship with him. That is her right and not mine to interfere with. That relationship is my duty to encourage so that my child has all she deserves.

    It is definately not too much to ask that people with offspring cooperate together in raising their child and find a way to do that without compromising the child’s time or relationship with the other parent because that relationship is theirs and while they are young its up to us to set them up so that their relationship with the other parent has an equal opportunity to flourish. Why would anyone seek to undermine that in order to present their spouse as their child’s parent? It’s shortsighted and selfish. Just grow up and cooperate and everyone play the roll of who they are not who they wish they were. The people who made the kid have the obligation to the kid that is permanent. Their spouses have a relationship with the child that is through the spouse and should end when the marriages end with some provision for visitation if there is a deep psychological bond or whatever but it should not be like they are parents.

  11. Hi Marilynn: Regarding the “fertility club” idea you mention, I have heard of informal groups like that in the gay community. In some cases, a gay male couple may team up with a lesbian couple and have multiple children together, some of whom primarily live with the male couple, and others who live primarily with the lesbian couple.

    Regarding the concerns that you have about children never knowing their egg or sperm donors, you may be glad to know that anonymous donation is on the decline. Donors and their recipients are increasingly wanting open or semi-open scenarios. The donors still don’t tend to have legal rights or responsibilities, and there may be very sparse contact with the resulting children, but the child and/or his parents increasingly know the identity of the donor.

    • I’ve heard of those clubs and I think they are a great idea. It’s essentially a dating service for like minded people who want to be parents but might not get through a romantic relationship so they find someone they can be good friends with live close by with. I can imagine where the first year the child would live with Mom and Dad would live near by or in the same building or home and they’d work out a fair share and there would be financial support and there might be a second dad or second mom that are step parents but there all the time. I can definitely see it working especially because there is no animosity towards the other parent as an Ex or jealousy with the other person’s spouse. I can see coming to that situation much easier than a known donor because the known donor still made the choice not to be a legal parent which is rejection and neglectful of his /her child, it’s careless and the kid will know that. This way both people do what they are suppose to do and the are willing to cooperate they don’t want the child to be locked out of the other parents family legally. Its just the logical respectful way to go about the business of making children with people your not madly in love with. Nobody looses.

    • I do not think that these open scenarios are much of an improvement over donors who remain anonymous until age 18. They may work for some people but they are not for everyone. To me they seem like recipes for conflict, loyalty confusion, role confusion and so forth unless the adults handle themselves with extreme grace and maturity.
      In some cases, like that you describe in which the donor has sparse contact, the potential for feelings of parental abandonment might be worse than if the kid never had a chance to relate to the abandoning parent at all.
      And no telling a kid that someone is not your parent when he is, is not a solution for anything.

      There is also something commodifying about contracting to make a baby, even if its done via sex, and not as a byproduct of a loving relationship. Although this is not as severe as in the case of commercialized donations.

      • Ki I’m not saying it’s ideal. I’m saying that the resulting person has not lost any rights and both parents are meeting their legal obligations to the child. Nobody ever promised us a rose garden. You cannot legislate love or true attentiveness but you can legislate physical and financial support until 18 and accurately recorded medical records and legal recognition of our genetic kinship and make it illegal to misrepresent oneself as being the parent of a child when the child is not their offspring, its fraud and requires the theft of the minors true identity. When you say it might be better for them not to know that person at all than sparsely, well that is not for the mother to decide that would mean concealing info that is not hers to conceal it does not pertain to her as she has no relation to that person but her child does. Its criminal for mothers to conceal info from their kids in the name of protecting them. Its wrong and not their place.

  12. I know they are moving towards known donors but it does not solve the problem of the child not being a legal member of that person’s family and they won’t have the right to know about that person’s other children as they grow up. Its very important that they are raised to know their brothers and sisters cousins aunts and uncles from the very beginning and that it be legal kinship to keep their rights equal with other people or they loose and are not treated fairly. It’s not enough to just know who they are later on there has to be a good reason why they are not involved raising them. That reason can not be that they want to help other people have a child. If that is the reason then the child was treated as property and given as a gift or sold to serve as those people’s child. It’s just not OK to treat human beings like pets that way. I’m starting to think it’s not OK to treat pets like pets actually. Buying a living creature for my entertainment to be my friend seems almost as wrong to me now. I can only justify it by the fact I’m use to it. How spoiled of me I have to mull that over.

  13. Hi ki sarita: I mind myself agreeing and disagreeing with this statement:

    “In some cases, like that you describe in which the donor has sparse contact, the potential for feelings of parental abandonment might be worse than if the kid never had a chance to relate to the abandoning parent at all.”

    I recall a good book I read years ago, Women and Their Fathers by Victoria Secunda. Despite the title, the book is applicable to sons as well as daughters, and even has some specific focus on the son-father bond. There are some chapters about children who had no relationship or contact with their fathers, and those who had very limited relationships with them. It found that the children who fared the worst were the ones subject to a lot of flakiness from their fathers, e.g. fathers who make contact every year or so, make promises to be close from now on, and then disappear for another year or so.

    What I take from this is that, if a sperm donor is used and there is a relationship between the child and donor, it’s important for the adults in a child’s life to be very clear about what the donor is and isn’t, and the adults need to stick to that plan. The donor shouldn’t alternate between calling himself “just the donor” and “father” depending upon his mood that day. If he comes to the child’s first soccer game of the season but knows he won’t attend any other events for the rest of the season, that should be spelled upfront. And so on.

    • i think it should be very clear to all parties that the donor is a father and that this definition is essential andd not based on the whimss and wishes of any party
      and then they should proceed to wprk out an arrangement based on that. not for everyone

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