In Utah: As to the Husband, So to the Wife

There’s a new case from Utah that raises some issues we’ve talked about here.

To begin with, a word about existing Utah law.   The statutory law in Utah facilitates a married couple’s use of assisted reproductive technology.  In particular, if a married man/woman couple use sperm from a third-party in order to conceive a child the husband is automatically the legal father of that child, as long as the proper consents have been executed.

One way to think about this is as a special case of the marital presumption. (This has been the subject of much discussion in the past–check out the tags on the left.)   That presumption generally states that if a married women gives birth to a child, the child is presumed to be the legal child of the husband.   The general presumption works in different ways in different states and at least sometimes it can be rebutted by genetic testing.

But of course, if the husband and wife are using third party sperm, we all know what the genetic tests would show:  the child is not genetically related to the husband.   

Facing the End of Anonymity

As you all know I’m a law professor and that means many of the folks I talk to are also law professors.  Over the years I’ve had countless exchanges, some casual and some more in the nature of debates, about the value of anonymity for those who provide sperm and eggs to people doing ART.   This remains a lively issue among academics.

It’s an important topic, both in terms of the big picture and for the individuals most directly affected.    It’s also one where my own views have changed dramatically over the years and are, I imagine, still evolving.   This probably makes it especially interesting to me.

Yet it seems to me that questions about the value of anonymity and the ways in which the law should/should not protect/promote it are being outflanked by reality.   Which brings me to this blog post.   It’s by Wendy Kramer, a co-founder of Donor Sibling Registry (DSR).  

Third Party Gametes and Unintentional Incest

In the course of the public debates about use of third-party gametes (particularly what are commonly called “sperm donors”) those opposed often raise the specter of “accidental incest.”   (One of the more well-known instances is here, and it’s particularly notable for three reasons:  It got a ton of press, it really has nothing to do with use of third-party gametes as it’s about adopted-out siblings, and it is quite possible that it never happened.)

In any event, the idea is that if people do not know they are genetically related then siblings (like the possibly mythical twins who were adopted out into different families) might unwittingly meet, fall in love and have children.   I’ve read, in fact, that the affinity arising from the genetic similarity might even make it more likely that siblings would feel attracted to each other, though I have no idea if this is the case.

I don’t mean to dismiss this risk out of hand. It’s obviously possible.  The twins story may not be true, but it could be true.   And the problem is clearly exacerbated when you have men providing sperm to create scores of offspring.   Indeed, concerns about unintentional incest are most often raised precisely in this context.    And for what it is worth, I am fine with limiting the number of children who can be conceived with any particular providers sperm (or eggs, but that’s less an issue.)

Now what brings this all up right now is this report from the Hay Festival.   Professor Susan Golombok appeared there.  She’s a woman whose work I really admire.  And, according to press reports, she expressed some concern about the risks of accidental incest. 

And Then There is Marriage and Parenthood In NY

A couple of posts back I wrote about marriage and parenthood and how they are linked together in Oregon.    Bottom line (for present purposes) is this:  When a married couple in OR uses ART, the spouse of the woman who gives birth is a legal parent, whether that spouse is male or female.   The statute itself only speaks of “husband” a few years back the OR Supreme Court reasoned that you couldn’t treat couples using ART differently because of their sex.   There’s no good reason for doing so.

Now comes a new case from NY reaching a different result.  A married lesbian claiming parental status by virtue of her marriage to the woman who gave birth is told “no,” although I believe a man in her position would have been told yes. 

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.  

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.)  

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. 

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.      

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. 

A Sperm Donor’s Challenge and the Law’s Treatment of Genetic Connection

This New Jersey case has been on my mind for the last couple of days.  I’m a little worried about my understanding of New Jersey law (and I’m hoping someone can check me on it) but it seems to highlight some of the odd ways the law can work.

Sheena and Tiara Yates are a lesbian couple who live in Pennsville, New Jersey.   They have two children.   Both were conceived using sperm from men (two different men) who were meant to be donors.   As I understand the story, both men signed contracts that purported to give up any parental rights.    Yet each man changed his mind and each sued for recognition as a legal parent and the right to spend time with the child conceived with his sperm.  (Once you gain recognition as a legal parent, it’s far easier to claim an entitlement to time with the child.) One man won his case and the other has yet to be decided.