Just A Quick Note About Sperm Donors and Parentage

Once again I’m afraid I’ve been unable to get to comments during the teaching week. There may be some hope, though, in the next little while.  Meantime, I wanted to link to this article from the Boston Globe.

You can tell from this blog, and the Globe confirms it, that there have been a number of recent cases about the parentage of sperm donors.   (If you look back you can see posts about disputes in Indiana and Virginia as well as the Kansas dispute.   The Globe story drives this home by providing an overview of the current chaos.

But what exactly is the solution?  A little more uniformity might be nice–but what would the uniform rule be?  (I know everyone can answer this question for her or himself, but can we really answer it nationally?)   What’s clear is there’s a whole string of possible rules.

One end of spectrum you can say genetically linked man is always legal father (which means no sperm donors).  Or you can say genetically linked man is legal father unless ART used, in which case he is not.   And you can allow variation from that general ART rule if there is a (written?) agreement to the contrary.   Or you could say he’s not a father if ART plus (written?) agreement, but ART alone still leaves him as legal father.  And of cousre, if we do any of those you have to figure out what ART means–does it mean with a doctor? What about the at-home turkey baster insemination?   The problem is that there are so many different ways to mix/match these things.

To some extent the choices made reflect what we think about how people are acting.   For example, do you think most people who make these sorts of agreements put them in writing?  If you do, then saying that the agreements must be in writing makes a lot of sense.  Most people who have made agreements will have the writing.  (That’s the assumption, right?)  And some of the people who don’t have any writing are probably lying about whether there were agreements.  And as for the rest–well, it’s too bad but here’s hoping there aren’t many of them.

Then again, suppose you assume that most people who make these agreements DON’T put it in writing.  Then a rule only giving force to written agreements will not seem like such a great idea–because it will fail to recognize a lot of agreements that really were made.

I’m not sure I can offer an argument that the current state of affairs–a lot of different rules in a lot of different states–is particularly good.  Indeed, it is  a trap for the unwary as some of the stories in the Globe article show.   But unfortunately, I don’t think it is likely to change.   And so we will be living in this complicated world for some time to come.   It may not be good for anyone else, but it’s great for legal academics.

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31 responses to “Just A Quick Note About Sperm Donors and Parentage

  1. my solution is that a sperm donor is only if the man is anonymous and unidentified. otherwise he is a legal father.

    • So would you make provisions in the law that allow men to abandon their children anonymously as a service to others who want to raise their children? Screw it then why bother with court approved adoptions?? If it is OK for them why not for everyone? If its working out so well for their kids why not apply that theory across the board so that every minor can be the object of a private contract for custody and parental title?

    • Except that rules out men who want to donate to a brother or male best friend and are happy to do that because they think the child will be well brought up.

      • i would phrase it rather differently
        that might rule out men who wish to father children (even with their sister in law) while pretending to be their uncle

        • The use of the word “pretending” interests me. It rules out men (and family configurations) where there would be complete openness about what was done–where the legal parents would say “here is uncle Sam who provided the sperm from which you were created.” Would you say these people–who are honest about what they are doing–as still pretending because the genetically related person really is the father, no matter what the social structure or the law? I think that’s a plausible stance, but I wonder if that’s what you would say. Or is the “pretending” meant to only apply to people who are not open about what was done and thus present a pretense of genetic connection where there is none?

          • A person whose sibling has offspring is an aunt or an uncle. That is who they are to their sibling’s offspring and their siblings offspring are their nieces and nephews. You are still siblings whether you are raised together or not – your bodies won’t know that you are not siblings if you reproduce together. You can act or pretend not to be siblings, or someone’s child but in reality your just acting and pretending to be the person whose roll you are playing. Pretending to be a niece rather than their child.

            • I think you are working off an assumption that the only “real” relationships are genetically verifiable ones. If I add in the modifier “genetic” then I can say what you say–a person whose sibling as offspring is (genetically) an aunt or an uncle. Being genetically a sibling means you and your sibling are offspring of the same two people. That’s all fine. And of cousre, the genetics remain the same whether you are raised together or not.

              But if you are raised with someone from birth as siblings–by which I mean you have common (social) parents who treat you (socially/pscyhologically) as though you were both their children, I think that matters, too. Perhaps we can call those social siblings as we called the others genetic siblings?

              Both relationships are important. You might have some genetic concerns about the genetic brother/sister producing offspring, but I suppose with good enough genetic screening we could decide it is okay anyway. There’s no genetic issue with the social (but not genetic) brother/sister pairing, but I sure see lots of problems with it. If they are raised in the same household and think of each other as brother and sister it seems like a bad idea without any regard to the genetics.

              Anyway, there’s no reason that the two sets of relationships (genetic and social) must always run together. Social/pscyhological siblings can be genetic strangers. Genetic siblings could be social/psychological strangers. Or genetic siblings can be social/psychological siblings. Similarly, someone can be a genetic parent but a social/psychological uncle. Whether or not that’s pretending (to me) depends on how honest the people involved are. If you lie about the genetics then perhaps you are pretendin, but if you are honest about it, I see no pretense.

              It seems to me that you are just disregarding the importance of the social/psychological role that people play. This (as a general matter) worries me. The genetically unrelated social/psychological sibling can be a very important person in a child’s life. To casually sever the relationship and simply say “that was just pretending” can do terrible harm.

              It was actually thinking about this that lead me to write the later post on the death of a parent. I don’t really care if your genetically related to the person who was raised as your sister or your brother–you shared a childhood. That’s a lasting legacy and I think we need to be mindful of those relationships.

              • Lest you forget I’m just a walking talking lifetime of shared personal experiences with brothers who are not genetically related to me or are genetically related to only one of my parents – with that in mind of course I agree with everything you said…but I’d add that they were required to do a fair amount of pretending that I did not understand until later and their relationships with their own families were acknowledged but not like deeply embraced and encouraged – they honored the dad that did the heavy lifting and to like or love the one that was the jerk to mom and never showed up for visits or paid child support was like going to hurt good dad’s feelings i guess. Anyway eww I’d never in a million years mess around that way with my brothers because we were raised socially that way. But genetic testing does not give people the ability to know in advance if they are going to start dating a sibling or a cousin or an aunt, you have to be raised knowing and being known to your relatives and be identified by your proper kinship title so that its clear who you are in relationship to who they are. So telling someone that their unlcle is their father leads them to live as if their cousins were their siblings and as if their siblings were their cousins and if they are going to live that way, the healthier way to do it would be to say that my uncle is raising me he “is more like a father than an uncle since my dad is not around very oftern” That is a situation I grew up plenty around that was not pretend at all.

          • “here is uncle Sam who provided the sperm from which you were created”.
            yes, Julie, that is pretending. you know something is wrong when you’ve got to use too many words to say something that should be pretty darn simple. “your biological father”.

            • Fine by me if people want to say “here is uncle sam, who is your biological father.” I wouldn’t dictate the terms. I just thought the latter might be more confusing than the former, but of course, every family must find their own ways to talk about these things. I would not tell the family that chooses my phrasing that they cannot do that. And if you want to say “Here’s Sam–he’s my brother and your his offspring” thats fine, too. I don’t mean to dictate here.

      • That shouldn’t be allowed anyhow. I mean it’s OK for an uncle to wind up the guardian of his brother’s offspring, but not OK for an uncle to claim to be the father ,or intentionally conceive with, well, anyone he is not married to for that matter.

    • Just so I’m clear, you mean that if a man is formally anonymous, then he has no legal rights or obligations, while if he is identied in some way, then he must be a legal father with all rights and responsiblities?

      What does this mean for a man who agrees to provide sperm and also agrees that when the child turns 18 the child can have identifying information? Is he sufficiently anonymous to be avoid being a legal parent?

      And what about a man who agrees under condition that he is anonymous, but whose identity is learned at some point–as Marilyn has noted many times, there are lots of ways to track people down. If he is tracked down (or if he himself tracks down the person who was given his sperm) does he then become a legal father? (This point seems important because I’m really not sure about the extent to which anyone can guarantee to a man that he will remain, for all time, anonymous.

      I’m not asking these to be challenging, but because I want to understand the contours of your proposal better. That said, it does seem to me somewhat counter-productive. Many contend it is at least sometimes better for people to build connections between the gamete provider and the child in those cases where people do use third-party gametes. Your proposal makes that route untenable and gives people planning to use third-party gametes an all or nothing choice. I’m not sure why we ought to exclude the middle–the possiblity of having an identified gamete provider who actually has some (non-parental) role in the child’s life. I see the exclusion of this possibility as a cost of your proposal and I am not sure what is gained in exchange for that cost.

      • Elsewhere I’ve written that you don’t go backwards and change status. So if someone is anonymous at age 18, when the kid is a baby, he’s anonymous. I don’t see that as an issue. I think known-upon-adulthood is a great improvement over never known at all.
        On the other hand, As for the counterproductive aspect, you wrote:” Many contend it is at least sometimes better for people to build connections between the gamete provider and the child “.
        I do not contend that it is better at all, if they plan to raise the kid with convoluted, conflicting and confusing relationships, which is what they are doing when they insist that a father is really a “gamete provider” or whatever jargon, just anything but a father. it might be better, but it could also be a whole lot worse.
        If they can not recognize the child’s father, they are no different from any divorced parent who tries to alienate the kids from the other parent. why is this an option that I would in anyway try to support?

        • I’m not sure I understand. I’m thinking about the person who is not anonymous at 18–who agrees to be known or knowable at that point. Does that person count anonymous in your system?

          I don’t know that there are studies of the particular point that comes up here–whether it is better for children to have a completely anonymous donor or to have a donor who they know and have some defined (but not parental) social relationship with. You are making an assumption, though, that I wonder about–and that is that the arrangements people make are conflicting and confusing. (I’ll give you that they are sometimes complicated.) But from what I have seen (and here I am speaking purely anecdotally) children are quite capable of understanding the relationships as long as the adults involved are clear and consistent. I know kids who say they have donor dads, kids who say they have dads, and kids who say they have no dads but only donors–and while in all of these cases that I’m thinking of the man is the genetic parent, in none of them is he a legal parent. None of the kids I’m thinking of seem confused about this all–it’s just the way their families are. And as long as no one tries to tell them that their families are second-rate or defective, it all seems to work fine.

          • if a guy will be identified 18 years from now, as for now he still counts as anonymous.

          • “children are quite capable of understanding the relationships as long as the adults involved are clear and consistent.”
            Yes, I agree that children generally swallow what their parents tell them. Until they don’t. As for clear and consistent- what I am suggesting is very clear and consistent, more so than having personal agreements negotiated between every individual couple.

          • Now what you call “telling them that their families are second rate or defective”, does that include making them aware that they have fewer rights than their peers? Fewer rights than people whose biological parents told the truth and were held accountable for their offspring as the parents they are? Because it means the difference between being a US citizen for a lot of offspring born over seas who should be able to live here and attend college here work here travel freely back and forth as any other U.S. citizin. That is just one tiny one of the many examples of unequal treatment for donor offspring. It may not effect all donor offspring but it applies to them all since not being recognized as their bio parents child has many ripple effects that are unfair. It may or may not impact the lives of an individual donor offspring but as a group of people they have been singled out and given a reduced roster of rights compared to people not in their category.

  2. anonymous men are never named as legal parents, whether by sex or ART

  3. A lot of this depends on what you are trying to do – whether you are aiming to encourage or discourage donation for example.

    As an individual, particularly if you’re going to deviate from the norm, then I think you do need to be mindful, plan and put things in writing. That is fairer to all concerned. So I’m not that sympathetic to people who go ahead and make informal arrangements without taking basic legal advice and getting informed – it’s not like a web search on ‘sperm donor law *yourarea*’ won’t get you the information you need, after all. There are plenty of other situations where people break the law and we don’t say that the law should change as a result – though maybe the implementation of it might change. (I’m thinking of cannabis smoking as an example. You might prefer to contrast Prohibition.)

    Yes, people make informal agreements and avoid going to clinics because of the cost. Then (to me, as I am pro-donation) we need to find ways to ensure that donation can happen in a legal, provable way, where the child has identifiable legal parents who cannot evade their responsibility, even if conception happens outside clinics. If we end up with a situation where women or donors lie for financial reasons, then the children aren’t going to find out the identity of their donor, which to me is a worse evil.

    Having looked at some of the heartbreaking legal judgements in recent UK cases about sperm donor status/access and custody on bailii.org eg ML & Anor v RW & Anor [2011] EWHC 2455 (Fam) (29 July 2011), or the dire Australian case of re Patrick, which ended with the lesbian mother of the disputed child killing herself and the little boy, you can’t help thinking that people tend to go into these arrangements keen to achieve a pregnancy and without always having thought through how it will work, even if they have an initial agreement. Either that or it is difficult to impossible for people to know how they will feel once a child has been born. If the latter then there are always going to be some cases which will end up in court. But the best we can do I think is to ensure that where possible the legalities have been followed, that people do have a written contract (because at least then they have to think about it) and ideally have counselling first.

    People might say it’s unfair to impose that burden on people who have to use non-traditional methods to have a child, but to me it’s precisely that which makes it more important that things are discussed and agreed. If it all goes wrong it’s very hard on the kids, and they’re the last ones who should suffer.

    • I wasn’t aware of the cases you refer to and I have not yet tracked them down. But there’s a general point you raise that I think about a lot. There’s a reality here–some people will do the internet search or look on Craig’s List for a donor. They won’t pay to consult with a lawyer or even to work with a fertility clinic. And in some cases, even if they make agreements, they won’t be in writing. (And of course, many times the agreements will be fuzzy and vague and maybe not even agreements at all.)

      And in some of these cases, children will be conceived and born. Now if everything works well, then we’ll never know about and I’m sure this happens sometimes. But there will surely be times when things go astray and then what?

      I think you could say that when this happens we ought to bend over backwards to do whatever is best for the individual child involved. After all, that child had nothing at all to do with the circumstances of its own conception. But you could also say that this approach simply encourages people to ignore whatever legal requirements have been put in place. For instance, suppose we have decided that written agreements are important and so required. Then we shouldn’t overlook the fact that the people in the individual case we’re looking at didn’t do that. That approach would lead you to follow the law even if the outcome isn’t terrific for the individual child concerned.

      How do we choose between these approaches? Does it depend on how frequently the individual cases will arise? Does it depend on how frequently we think people will skip the “in writing” part? I don’t have answers.

      It’s also always interesting to me that we have all these concerns about people using ART but typically don’t carry them over to people having sex. They are at least as likely not to have thought through all the implications of parenthood.

      • I am beginning to think that sex is something like pregnancy in that it is, in some people’s psychology, irrevocably tied to reproduction.
        So in the same way that many people don’t view a genetic mother who hires a surrogate as a mother- because she wasn’t pregnant- so people view a man who hasn’t had sex as a father. The man who DID have sex, the husband, is viewed as more likely father.
        People may know it doesn’t make sense intellectually but it seems that their psychology hasn’t caught up with technology.

        • Take our “Uncle Sam” case up there. If Sam had sex with his sister in law, and then presented himself as Uncle Sam to his biological child, most people would smell something rotton. even if his brother know about it. they’d all be seen as colluding in hiding something important .
          And if they did decide to tell the kid, none of us would be surprised if the kid had some inner questions and conflicts on how to relate to all the people involved- especially “uncle” Sam. none of us would be surprised, in fact we’d expect it.
          Now all of a sudden, “uncle” sam gives his sperm in a cup to sis-in-law, we’re supposed to look at the situation as something entirely different, although th result is exactly the same?

          • Julie if you really believe genetics is relevant at all to how we define kin, why do you think the parents are not being open if they don’t tell the kid the exact circumstances of its conception? Why do you think they should bother to tell something so irrelevant? Why is it any different than parents not telling the kid what position they had sex in or something like that?

            • You know none of this has anything to do with reproductive technology or sperm donating. This has to do with how people behave once their offspring are born and how people do or don’t want them to behave after their offspring are born when they are biological parents. There is no technology about it – its just people behaving differently than they’d normally be expected to under the circumstances and hoping to convince the world that things are how they want them to be rather than how they really are. Its like a giant game of geeky dungeons and dragons where everyone has their little characters they grant with special powers and then they sit around arguing whether or not their parent overlord is more power then the other guys parent warlock or whatever. Its fantasy roll playing. Technology does not create these situations prior to birth.

          • What Ki said.

        • OMG THAT’S SO DEEP.
          I just love that you are totally right huh?
          See I was dwelling on marriage lately being that thing that makes the child important but it may just be sex. Intellectually they know it is not true that of course sexual reproduction does not require the two people have intercourse, but they imagine that because they have sex with the sterile person that makes the person the parent of their kid Totally delusional but way true.

      • You just don’t give a hot God Damn about how people come to have custody or control over someone else’s offspring do you? The ethics of how when and why a genetic parent no longer has possession of or control over the care of their minor offspring is not the least bit important to you at all; genetic parent or social parent its all the same why don’t we question genetic parents the way we do people using art or people adopting? Because there is no chance that a genetic parent purchased their own parent/child relationship from someone else. They were not paid by themselves to have their own parent child relationship. The child was not trafficked into or out of that relationship so the ethics of it are not at all questionable the origin of their control and authority is responsibility for having created the child they are just taking responsibility for their actions. We question other people with art and adoption because we need to know why the bio parent is not raising their child and were they paid was there a private contract all these reasons have to do with ethics and trafficking not with preparedness or with being well suited for raising children. Ethics and child trafficking and contracts for parenthood, slavery you just never never never address the ethics of how non biological parents became in those positions of authority and you never discuss the difference between coming by those relationships in an ethical way where they have no influence over the child’s separation from the bio family and the unethical way where they get in there and influence the bio parent not to raise their offspring. its all the same to you

  4. “One end of spectrum you can say genetically linked man is always legal father (which means no sperm donors).”

    By genetically linked men I’m assuming that you mean men who have offspring. Making all PEOPLE to and for their offspring the legal parents of their own offspring does not mean no gamete donors. It is not suppose to be their children that they are giving up anyway, just the gamete; so simply take all that stuff out of their little agreements that has anything to do with not raising their own offspring or others claiming to be parents to their offspring, that stuff does not belong in a simple contract for custody of a cell.

    • Sorry if unclear. By genetically linked men I mean men who provided the sperm used to create the child.

      I think there’s a word missing in the second sentence of your second paragraph? It’s hard to respond without knowing what that word would have been.

      What I meant to suggest is that most people (single or couples) thinking about using sperm from a third-party these days would not want to use the sperm if the sperm provider was then going to be a legal parent. This is clearly true for single women–when they look for donor sperm they are not looking for a co-parent.

      • I’m just pointing out that making all people accountable to and for their own offspring, so that all offspring have identical expectations and legal protection would not restrict people from donating their gametes nor would it restrict fertile women and potent men from opting to reproduce with people who had donated their gametes for reproductive purposes. Because a gamete is not a person’s offspring so giving the gamete up is not the same nor should it be construed to mean that they are abandoning their responsibilities for their offspring. I’m just saying that the motivating factors behind one person reproducing with another person could be accidental, could be force, could be love, could be marriage could be charity or monetary gain but none of those motivating factors that operated to influence a person to reproduce should have any bearing on whether or not their offspring has a right to expect the state to name those people as their parents and require them to provide physical and financial support while they are minors. So there would still be gamete donation they’d just have to take care of their offspring no different than had they made a baby with their own wife, its not the child’s fault that one of their bio parents only made them in order to pay their spring tuition.

    • And prohibiting gamete donation does not mean making all people the legal parents of their offspring either. In fact I say that people who intentionally conceive with someone they are not married to are unfit parents and should not be allowed to be the legal parents. But short of that, they certainly should not automatically be parents; they are lucky to be allowed to be parents at all.

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