More From the World Of Sperm Banking

I’ve written before–even post-sojourn (which is how I now think of my long break from blogging) about the problems with unregulated and for-profit sperm banking.   It does not seem to me that this is a case that still needs to be proved.  Surely it is clear that some sort of intervention is needed?   (This doesn’t, of course, say what form of intervention and there are many devils waiting in those details.)

But need it or not, here’s yet another story that offers a glimpse of some of the complex issues that lie beneath current practices and any changes.  It appears there is a sperm bank–Xytex–that (wittingly or not–and we’ll come back to this momentarily) provided sperm to a number of women that was not as advertised.   It came from James Christian Aggeles.   Aggeles lied to Xytex about his educational background and, to my mind far more importantly, his mental health history.   While Aggeles had been diagnosed with schizophrenia and narcisissitic personality disorder, he omitted this information.   His sperm was used to create over 30 children, including 7 in Canada.

Now clearly Aggeles did plenty that was wrong.  But did Xytex?  And if so, what?  

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).  

The Price of Eggs

Here I am again.  Been traveling and what-not, but back now.  And just in time.

There’s an article in today’s Wall Street Journal–front page–about the price of eggs.   (Because the Journal is subscription only, I cannot effectively link to it.   Sorry.  You may be able to get it through your favorite library, perhaps?)   Anyway, I’m especially sorry not to be able to post it because I am actually (briefly) quoted in it.  But that’s not really why it is noteworthy.

This actually dovetails reasonably well with the consideration of egg freezing that was underway just before I went traveling.  (And on that subject, see this recent Time Magazine article.)

Part of the hook for the WSJ article is the anti-trust suit that began five years ago.   The idea here is that there is a suggested cap for what is paid to women providing eggs.  

Two Things Egg Freezing Might Mean?

One of my favorite blogs is Olivia’s View.   There’s a new post there today that has set me thinking.   It’s very brief but it adds in to other things.

What’s noted there is that women over the age of 44 are very likely to have trouble achieving a full term pregnancy with their own 44-year-old eggs.   I suppose this isn’t news in a general way, but the detailed findings lend stronger support to something we probably knew anyway.

So what will this mean?   Long term it seems to me this is good news for the burgeoning business of egg preservation.   Young women (say in their early 20s) will be all the more eager to freeze their eggs.   The more clear it becomes that you will lose fertility as you age, the more appealing preserving your youthful fertility will be.

But this is only useful

Second Thoughts

It’s not me having second thoughts–sorry if that heading mislead you.  A couple of different things have gotten me thinking about gamete providers and second thoughts.

First there is this decision–a significant one, I think–from Illinois.  It’s been in the newspapers, but you can read the actual opinion as well.   It’s long and deserving of some real consideration.   (I’ve also written about it before at an earlier stage of the proceedings.)   For my purposes here, though, I’m not going to dwell on the opinion. (I’ll do that another day, soon I hope.)   A bare-bones version of the facts will do.

Karla Dunston and Jacob Szafranski were dating.   Karla was facing chemotherapy that would very likely destroy her ability to produce eggs.   I think this was before the days of reliable egg freezing, but whether this is true or not, Karla thought to preserve her genetic material by having the eggs fertilized and then freezing the pre-embryos.   To do this, she needed sperm.  She asked Jacob if he would provide the sperm.   He agreed to do so.

A Bit More About Accidental Incest

The last post here was about the problem of accidental incest.   (Do note the word “accidental” because it is critical–I’m not talking about deliberate, knowing incest.)  There are some interesting comments so I thought I’d do another post on the subject, partly to sort out threads and perhaps also to move a bit further along the line here.

I’ll start with a recap of what I meant to be my main point from the last post:  Why is the specter of accidental incest troubling?   I suppose this is a  variation, albeit a significant one, on the question “what’s wrong with incest?”   (Understanding why accidental incest is troubling is important to me as I consider what to do about it.)

There are (at least) two non-exclusive answers. 

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.      

What Damages When a Sperm Bank Errs?

I know I’ve been mostly absent.  Just so you all know, it’s simply that kind of semester.  I’ve been wildly busy with teaching and writing and so, until things settle down, this is on the back-burner.

That said, there’s a recently filed lawsuit that I have seen discussed many places.  Need I say that I am tempted to add my own two cents?   And so I shall.

The facts are pretty simple and this leads to a very brief version of them.   An Ohio lesbian couple used sperm from a sperm bank.  They put in a request for a particular donor and were given the wrong one.  This was an error on the part of the sperm bank.   In this case, the women, who are both white, had asked for a white donor and they were mistakenly given a Black donor.  Thus, the resulting child is mixed race.   And they’re suing for damages.

Many people have found this lawsuit troubling.  I don’t think it has much to do with the parents being a lesbian couple–I think you’ve have the same issues with a straight couple.  As some frame it, the question the case raises is whether they can claim to be harmed because their child isn’t white.