Week 5 Post 1-Sperm Donation

 Introduction

-There is an ethical and legal question of when a sperm donor can be held to be the legal father of a child 

-Case law focuses on sperm donation rather than egg donation, which speaks to the nature of how society sees the two donations, with sperm banks being large corporates organizations, and being very business-like, and egg clinics tend to be less mass produced and have a more seen as "homey"

-Types of sperm donors can be divided into three characteristics: compensated v. uncompensated, known v. unknown sperm donors, and anonymous v. open identity release

    -In known sperm donation the recipient knows the donor prior to donation

    -Anonymous sperm donors will always remain unknown, in regards to the information given out by the banks, with just their characteristics being available, so contact will be not possible, and most countries now do not allow for totally anonymous donation and require there to be a registry

-As advances in genetic testing develop the line between anonymous and known donors may blur 

-Open release donors agreed to give information to the child once they turn 18, if the children either request it, or if the donor when reached out to agrees to reach out to the child

-Open-release donors also change their mind about the decision they made about whether they'd like to be in connection with the child because of personal circumstances, so some donors may not be receptive to contact

-On the recipient side of donation there are many factors that they must consider, like choosing whether to have an anonymous or open release donor, and whether or not to draw on contracts to turn over certain rights of claim to the child to the recipients, which can vary from bank to bank or from state to state

The Craigslist Case

-The two main types of cases in which a sperm donor is meant to be known, but not be the parent- The sperm donor who was not initially intending to be the legal parent changes his mind and tries to assert parental rights, and when the sperm donor did not intend to be a legal parents but the recipient of the donation wants them to be later down the line, usually to secure some type of finical compensation

-In the "Craigslist sperm donor case" two women who wanted to have a child together placed an add on Craigslist for a private donation sperm donor, they get a donor, and provide him with a contract that allegedly downloaded off the internet, and they had the intent that he be a known donor, which relieved him of legal parenthood

     -Later the couple broke up and the woman who had the child applies for welfare, and does not put the donors name down, but does put the father of the child as "donor". The state requested she give the name, and a case is filed to establish the man as the legal father, in order to obtain child support form him

     -The man asserts that he was just being a good-Smartian and helping these women out, and signed a contract saying he would not be parent, so he should not have to pay child support

-In the end the court decides that the man is the legal father and must pay child support, because the couple and the man failed to do the process of donation under the correct guidelines of the state, with a  licensed physician, the man was not relieved of legal parenthood, and the contract they signed was void because in the court's opinion, a parent cannot terminate parenthood by contract even if all parties consent

-This is a case in which the state wanted to bring someone in as a parent, not any of the participants

The  R.C. Case

-A man, J.C. and a woman, E.C, who were both unmarried, but may have been friends or acquaintances, had a conversation about JC being a sperm donor to EC, he agreed and gave her some sperm, which she took to her gynecologist, who inseminated her, then she asked for a second sample which he gave and she became pregnant

-Once she had the child(named RC) she told JC that Colorado State law section 19-4-106 part two extinguished all of his parental rights and she would not let him see the child again unless he signed a release, which he refused, and then brought a paternity action against her

    -He said that EC was the one who asked him to donate, and would be treated as the father, which EC disputes. He also said he always wanted to be a father, and he bought the child toys, opened a trust fund and made a room in his house for the child while EC was pregnant, and attended birthing classes, along with assisting in the birth of the child. He also said he took care of both the child and its mother, all of which EC contests. He alleged that his intention was always to retain a parental relationship with the child

-The case went all the way to the Supreme Court of Colorado

-The baseline rule in Colorado is that if you are the biological father of the child you are the legal father, however that statute is altered by language that says that if with the consent of her husband a women is inseminated artificially by another person, and is in writing the law will treat the husband as the actual father of the child, and the donor of the semen will not be treated like the father unless the person inseminated is his wife

    -This statue was created to allow women not to have to worry about the donor later on wanting to assert fatherhood of the child, especially if she is married, and the child already ahs a father, and because the court does not want the mother to try to later on get child support from the donor, because that would discourage sperm donation

    -The Colorado statue does not require the recipient to be married to be able to cut off rights from the donor, but other states do which could be put in place because of social engineering and the state placing value on their being two parents raising a child, or economic concern where the state does not want to pay for resources for the child going forward and it believes that is less likely if there are two parents

-The court says the statute has two gaps in whether or not it applies, and they are if the donor is anonymous or known and if there was an agreed upon measure about the parentage of the child before hand 

-This case is about private ordering, where if there was an agreement between parties that would contradict the normal rule of law, and if it enforceable or not in this case 

     -Another example of private ordering is surrogacy, where normally the gestational and genetic mother of the child would be the legal mother, but if a contract is drawn up contradicting that normal law, it can be let go for that specific incidence

-There is aa default rule about how to treat the sperm donor and the question is whether individuals should be allowed to override

-the court decides to look to other jurisdictions for ideas on how to fill the gaps, which would be an example of persuasive authority, where the court is not bound to follow the rule of another state, but it can look at the reasoning and see if it is convincing 

    -They look at New Jersey where there was a case where an unmarried woman was not licensed inseminated and asserted that the donor was the legal father, for the reason of the best interest of the child, and because the donor was known and they had a relationship, but there are distinguishing factors between this case and the Colorado one: there is not statute in New Jersey like in Colorado, the people were in a long term romantic relationship, and the procedure was not done medically

    -They also look at another case from California, where there was a similar statute to Colorado, and similar circumstances, where two women asked a man to be their donor and they agreed he would have lots of contact with the child, which the recipient denies, and with no licensed person there is insemination, and the child does have a relationship with the donor, and he is listed as the father on the birth certificate, but the donor seeks an order of paternity after the recipient asks him to relinquish paternity, which goes to court. The court decided that the donor is the legal father because there was no licensed physician used, which the statute said was required,  and the mothers indicated they wanted the donor to be in the child's life. The distinguishing factor is that there was licensed insemination in the Colorado case

-The donor argues that the statute does not cover this specific case, because it does not cover unmarried women, with whom there was an established agreement and indication from the mother that there would be a relationship

-The court decides to look at the purpose of the statute, not just the words, and says that agreements between donors and recipients are irrelevant in two cases- when the recipient is married and the husband consents, and when the sperm donor is anonymous, however this case is neither of those two

-The court decides that in this case the agreement should be enforced, but then sends the case back to see if an agreement was really made 

-The court says that while the cases they reviewed are distinguished, they are relevant in the sense that the intent of the parents 

-The court is also doing some social engineering by implying that the best case for the child is to have two parents, and is trying to create a nuclear family out of sperm donation

The Ferguson v. Mckiernan Case

-The donor, Mckiernan and Ferguson were formally in a romantic relationship, and they meet while Ferguson was married and raising two kids. She had her tubes tied, so the two did not use protection, but she went to a doctor about having that reversed, but it could not be

-The couple eventually broke up but remained friends and spoke about using Mckiernan's sperm to conceive a child through IVF, which he initially refused, but then agreed to after she said she would release him of finical and legal responsibility of the child

    -Ferguson mislead her doctors to believe Mckiernan was her husband, and he gave a sample, which resulted in a pregnancy, during which the two remained friends by were not in a romantic relationship

-Mckiernan was there for the birth but her husband was listed as the father, and the two tried to keep the real genetic father a secret 

-Post birth there was not much contact, and there was no parental role assumed, and he got married and had his own child when Ferguson contacted him, demanding child support

-The trail court decides that there was a binding agreement that Mckiernan surrendered all parental privileges in return of releasing him of all parental obligations, and that he would keep his genetic connection to the child a secret, because they find his testimony more credible 

    -They hold that the agreement is unenforceable under the law because of the consent of the child not being there, so they hold he is the father of the child in the best interest of the child

-The donor argues that this case is different from other ones because it was created pre-conception rather than post-conception, and because if he knew his agreement would not have been enforced he would not have donated, also that holding him liable would call into question how liable all sperm donors are, and that the court should follow the Uniform Parent Act, which had not been adopted in the state yet, that says that the sperm donor is not the father of a child

-The mother argues that the court should follow the best interest of the child, and that there is a statute in the state that says that all children be legitimate without regard to martial status, also that the Uniform Parent Act should not been used because the state had the opportunity to use that legislation and had not

-The course then goes to the Supreme Court of Pennsylvania, and they say that the mother's claim is that the contract is unenforceable because of public policy because the right of support belongs to the child and not the parent

     -The court says that there is not enough evidence that this actually contradictory to public policy

-The court says that it is fairly trivial that some people knew of the father's true parentage because a ruling otherwise would make it harder to relinquish parenthood of the father in all cases but anonymous sperm donation

-The court says that the best interest of the child is important, but if the contract was not enforceable the child would not have been created, so the non-identity problem is in effect, and that Mckiernan will not be the father and child support is not enforceable 

-The court also says that the child of his marriage would be hurt from the case going in favor of Ferguson, which is another factor to consider