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.