Saturday, January 05, 2008

States Create Sperm Donors

The new social institution of the anonymous sperm donor is completely the creation of the government. This case from the Supreme Court of Pennsylvania proves that beyond any shadow of a doubt. In this case, a woman asked a friend to donate sperm to her, on the understanding that he would not be a father to the child: he wouldn't ask for visitation or other parental rights, and she woudl not ask for child support. By the time the child was 5 years old, the mother changed her mind and asked for child support. The PA Supreme Court overturned a lower court ruling, and decided that the man did not owe child support. The court ruled that the couple's verbal contract was binding.
This case is interesting because the court's argument makes it very clear that couples could not and would not contract for donor sperm unless they were assured that the state would create a separation between the members of the couple.
Assuming that we do not wish to disturb the lives of the many extant parties to anonymous, institutional sperm donation, we can only rule in Mother’s favor if we are able to draw a legally sustainable distinction between the negotiated, clinical arrangement that closely mimics the trappings of anonymous sperm donation that the trial court found to have existed in this case and institutional sperm donation, itself.

...however, we can discern no principled basis for such a distinction. Moreover, even if, arguendo, such a distinction were tenable, it would mean that a woman who wishes to have a baby but is unable to conceive through intercourse could not seek sperm from a man she knows and admires, while assuring him that he will never be subject to a support order and being herself assured that he will never be able to seek custody of the child. Accordingly, to protect herself and the sperm donor, that would-be mother would have no choice but to resort to anonymous donation or abandon her desire to be a biological mother, notwithstanding her considered personal preference to conceive using the sperm of someone familiar, whose background, traits, and medical history are not shrouded in mystery. To much the same end, where a would-be donor cannot trust that he is safe from a future support action, he will be considerably less likely to provide his sperm to a friend or acquaintance who asks, significantly limiting a would-be mother’s reproductive prerogatives. There is simply no basis in law or policy to impose such an unpleasant choice, and to do so would be to legislate in precisely the way Mother notes this Court has no business doing.

Moreover, we cannot agree with the lower courts that the agreement here at issue is contrary to the sort of manifest, widespread public policy that generally animates the courts’ determination that a contract is unenforceable. The absence of a legislative mandate coupled to the constantly evolving science of reproductive technology and the other considerations highlighted above illustrate the very opposite of unanimity with regard to the legal relationships arising from sperm donation, whether anonymous or otherwise.

Given that the state already permits anonymous sperm donation, I think this case is properly decided. Contrary to the Court's statement, I can think of several good policy reasons why the "would-be mother's reproductive prerogatives" should be curtailed.

Children have a natural right to have a relationship with their fathers. The state has no business separating mothers and fathers from each other, and children from their fathers. We should not assume that every woman has a right to have a baby, just because she wants one. And if a woman wants to "seek the sperm of a man she knows and admires," public policy ought to be to encourage her to marry him, not cook up alternative contracts with him that allow them to deconstruct the parental relationship.

I think we should begin having a debate on exactly these questions.
Cross-posted at the Marriage Debate blog.


Anonymous said...

Hehe^^ Who says legal documents can't be humorous?

On the subject of whether or not the sperm donor would have sex with the mother (even thought that wouldn't result in a child due to tubal ligation):
"Sperm Donor, evidently unaware that the point was moot, refused."
Right, 'cause it couldn't have been that he just didn't want to sleep with her^^

Anyway, I'm afraid I -am- human, and as such can only take so much legal jargon; I stopped reading after maybe ten pages.

...but, I wonder who's -arguing- that system of anonymous sperm donors are the creation of government? I can hardly think of anything else which may have created them, short of the medical sector (which is, if I'm correct, run by government).

That's just my take on it.

Jennifer Roback Morse said...

Hi Rea
Thanks for your comment. I had a computer glitch and wasn't able to complete my post. I now have the whole story up there, so there may be more you'd like to say about it.
Sorry about that!

tubal reversal said...

This does not surprise me with the laws. I know of a state where a couple wanted to have IVF treatments to have a child due to a previous tubal ligation and the physicians would not do it because the couple was not married. Which the woman ended up having tubal reversal surgery performed at mubabydoc Tubal Reversal Center which was outside of the couples home state. Not only was it cheaper but the pregnancy success is much better.
There are people that change their minds but they should be the ones to make the decisions and not the government.
I would start by asking the physician if there is anyone else he/she can suggest to contact. If this does not work then I would be searching quite a bit. The answer is out there somewhere.
The suggestion are highly appreciated