Category Archives: parentage

Who Gets The Embryos–And Why Does It Work That Way?

There’s a story that has been in the  news sporadically for the last months.   Some time in the past Sofia Vergara (who I guess is a well-known actress?) and Nick Loeb were a couple.  They wanted to have kids together and, for reasons I do not know, embarked on IVF.   As is typically the case, more embryos were created than were immediately used.  Two were frozen for future use.  But then the couple split up and faced the question:  who gets the embryos?

You can read one version of the most recent news story here and there’s also an interesting essay by Nick Loeb that appeared in the New York Times some weeks ago.   I’m a little wary of the facts in that essay, because surely they must recite Loeb’s version of events.  (One can assume there is another version out there, too, and we just don’t know it.) Continue reading

More About Marriage, Parenthood and Oregon

I wanted to add a few thoughts to the post I wrote yesterday.   It’s about a new Oregon case and you might be better off going to read it.  I won’t summarize in any detail.

Here, however, are a couple of key points.   It appears that Oregon recognizes that it is problematic to treat same-sex and different-sex couples differently.  They are all couples, in the view of the law, and so if you’re going to provide some different sex couples with a legal privilege, you have to provide same-sex couples with the same privilege.   This looks like a simple (and to me, unobjectionable) equality statement.

Now there is a specific privilege that is at issue in the case here:   In particular, OR allows the spouse in a different sex couple (who would be a husband) to have an automatic path to legal parenthood under some circumstances.  It must therefore allow the spouse in a same-sex couple (who would be a wife) to that same automatic path to legal parenthood under the same circumstances.   Continue reading

Marriage and Parenthood Tied Together in OR?

There’s a new case out of Oregon that I think warrants some discussion here.   You can read the opinion but I’m going to summarize the facts and issues in some detail.    Ultimately the issue presented here is important so bear with me as I lay it all out.

I’m actually going to start by talking about Oregon law generally because this, I think, is where the core issue lies.    In Oregon if a man and woman are married and the woman is inseminated with sperm from a third party and if the man (who is of course a husband) consents to this procedure, then the man is automatically (and apparently indisputably) a legal parent of the resulting child.   (This is set out in the first paragraph of the opinion, which I think is a manifestation of the centrality of this point.)  The court notes (page 127) that this is not dependent on the intent of the parties (although perhaps the legislature made some assumptions about intent) but simply on the marital status of the people involved.

Equally important, under Oregon law if the man and woman are not married, the presumption does not apply.   (127-28 in the opinion.)   Continue reading

New MA Case on Status of Known Donor

I’m interrupting my consideration of anonymity/secrecy to discuss a brand-new opinion from the Massachusetts Supreme Judicial Court (SJC).   The opinion was issued this morning and you can read the full text if you like.   I will, however, summarize what I see as the main points.

JS and VK are a married same-sex couple.   JS gave birth to a child–called “Nicholas” by the court, but that’s not his real name–in 2014.   The child was conceived using sperm from VK’s brother.

By operation of Massachusetts law, JS and VK were Nicholas’ legal parents from the very beginning.  Continue reading

Anonymity and Secrecy, Part II

Sometimes it seems so difficult to make progress in thinking through these issues.  This is one of those times.  Yesterday I began consideration of anonymity and secrecy in the use of third-party gametes.   Really it is just about secrecy–haven’t gotten to anonymity yet.  I had it in mind that today I would move on.  But the more I think about even the little bit I wrote, the more I find there is more to consider.

Though I think it is worth reading the last post (and yes, I’m biased here), I can put it in a nutshell:  I think concealing the fact that you used third-party gametes from the child who was conceived with those gametes is a bad idea.   (And just to be clear, I do not take the same position vis-a-vis the world in general.  I don’t think you have any obligation to announce your use of third-party gametes generally.)

But what follows from that statement?   Most obviously, if I were the person deciding, I’d be honest with the child and tell them about their origins.   Probably no one objects to that.   Many would agree that it falls within my discretion to tell.       Continue reading

Anonymity and Secrecy, Part I

I spent this past weekend at a wonderful conference in Boston.   Lots of very smart people thinking about ART and many things related to ART.   One of the recurrent topics was the importance of anonymity those who provide gametes for third-party reproduction.    (I know that this seems a very clunky way to put it–why not just say “sperm donors” and be done with it?   There are reasons, as regular readers (of my now irregular blog) will know.   For one thing, there’s the word “donor”–which is perhaps not the best word to use for people who are paid.  For another, there are overlapping issues for egg providers, and it may be that the overlapping issues are converging.    I cannot discuss all this here, but suffice it to say that I choose the clunky language deliberately.)

Anyway, one of the things that interested me was that many different questions were raised and there seemed to be some real disagreement in how to think about these questions.   Since I’ve spent a lot of time thinking about anonymity in the past, I thought it might be time to revisit (and maybe reorganize?) my own thoughts on the subject.   This could take a couple of posts, but I think it’s worth it.

So first off, there’s what one even means by anonymity.   Anonymity is related to secret-keeping.   An anonymous donor (in the philanthropic context) is one whose identity is kept secret.   But when you think about third-party reproduction, you can think of different levels of secret-keeping.  Continue reading

Money Troubles

There is a long story in today’s NYT which, while somewhat off-topic, illustrates the problematic role of money in a lot of the ART stuff I discuss here.  It’s about the commodification of breast milk.    While the story bears reading, the critical point to understand is that there is an emerging industry–and I do mean industry–built around processing breast milk.    One person calls it “white plasma”–which for me seems to echo the designation of oil as “black gold.”

There are doubtless many reasons why the industrialization of breast milk is disturbing even as its potential to save or enhance the lives of premature infants is clearly beneficial.   I just want to focus on one thing, though, and it has to do with money.

Human breast milk can only be obtained from one source–women.  The question raised in the article–and the one I want to think about here– is whether women should be paid to produce breast milk.   It’s easy for me to see the two sides.  Continue reading