Revenge of the Sperm Donors

Ever since 1884, when Professor William Pencoast of Philadelphia's Jefferson Medical College requested a semen sample of his "best looking" medical student in order to impregnate the child-seeking wife of a sterile Quaker merchant, sperm donation has held out the promise of parenting to infertile spouses, choice mothers and lesbian couples. Unfortunately, a misguided offshoot of the men's rights movement has recently started to assert paternal rights for sperm donors. This effort, which threatens both to undermine the stability of families conceived with donor sperm and to deter other would-be parents from availing themselves of such opportunities, has slowly chipped away at the established legal and ethical principle that sperm donors, while they may provide the biological material for conception, are not fathers. Now the Irish Supreme Court -- in a ruling that defies both reason and modernity -- has set family law back a generation by granting de facto parental rights to one such sperm donor. Vigilance is needed to make sure that this noxious jurisprudential seed does not spread.

The Irish case pitted a forty-two-year-old unidentified man against a lesbian couple whom he had earlier provided with sperm. At the time of his contribution, he apparently did not express any desire to retain parental rights. Instead, he was to be a favored "uncle" -- without any formal privileges or responsibilities. Later, after his friendship with the child's mothers deteriorated, he changed his mind. When the women attempted to move to Australia with their now three-year-old son, the sperm donor sued and obtained an injunction to keep the child in the country while he fought for his alleged rights as a biological parent. High Court Justice John Hedigan initially rejected his claims. However, on December 10, the Supreme Court's Susan Denham overturned Hedigan's verdict. Mustering a specious argument that could be used to reject virtually every case of lesbian parenting, Denham wrote: "There is benefit to a child, in general, to have the society of his father....I am satisfied that the learned High Court judge gave insufficient weight to this factor." Her decision, which awarded the sperm donor visitation rights while the larger issues of guardianship are resolved, is a slap in the face to lesbian parents everywhere. But its implications extend well beyond same-sex families. Any single female parent who has accepted donor sperm -- even one widowed or divorced -- is now vulnerable to the fatherhood claim of a stranger whose only prior parental contribution has been masturbating into a plastic cup.

American courts have so far generally resisted similar assertions. As early as 1993, a Manhattan Family Court ruled that a sperm donor, Thomas Steel, had no legal right to visit the daughter of lesbian parents Sandra Russo and Robin Young -- even though he had supplied half of her DNA. At that time, Judge Edward Kaufman seminally declared that Steel's efforts had "already caused [the child] anxiety, nightmares and psychological harm" and that, for the girl, "a declaration of paternity would be a statement that her family is other than what she knows it to be and needs it to be." In short, interpersonal and emotional bonds -- not genetic connections -- are what define families. Although that approach is now widely accepted, disgruntled donors have continued to press their cases.

The most widely publicized effort of a sperm donor to assert parental rights in the United States was a suit brought by Kansan Daryl Hendrix against his former friend, Samantha Harrington, who had given birth to twins using his excess sperm. A divided state supreme court ruled 4-2 that, in the absence of a written agreement, sperm donors were not legal parents. Yet Hendrix pursued his case all the way to the United States Supreme Court -- which refused to hear it -- and, in the process, became a darling of a faction of the American men's rights movement. Similar cases are working their way through the court system in other states. These efforts pose a genuine challenge to reproductive freedom and familial integrity.

The sperm donors' rights movement is the bastard stepchild of two strange ideological bedfellows. One group that has furthered such efforts are Christian conservatives who either oppose all forms of artificial reproduction or the single- and same-sex parental arrangements that can arise from them. These opponents of artificial insemination conflate the so-called "natural" with the desirable. (In child-rearing matters, however, they are often "naturalists" of convenience: Infant mortality, after all, is natural; vaccination and medicine are direct challenges to nature.) The other advocates for sperm donors' rights are men who, for various reasons, have missed the fatherhood train. Some have already played a limited role in the lives of the offspring they later attempt to claim -- but they often seek the benefits of fatherhood when they have earlier eschewed the responsibilities. Do not shed to many tears for them. If they had wanted the responsibilities of parenthood, as well as the pleasures, they could have had children of their own. Most still can. Instead, they have cast their lot with the most reactionary elements in the reproductive policy arena. Advancing the antiquated argument that every child should have a father, these forces have succeeded in preventing anonymous donation in Great Britain, Norway, Sweden, Switzerland, Australia and New Zealand. Great Britain and Canada no longer allow donors to be compensated. As a result, semen sources are drying up. The unfortunate consequence is that, without sperm, would-be mothers will not be able to conceive.

The irony of the sperm donors' rights movement is that it has undermined the rights of those donors -- the vast majority -- who do not want any contact with their biological spawn: Children are now pressuring sperm banks to identify their genetic "fathers" and several women have even succeeded in holding their sperm donors liable for child support. These trends also threaten to undermine the "no-strings-attached" policies that make altruistic sperm donation possible. Who in their right mind is going to donate sperm to a stranger when they risk being saddled with college tuition 18 years later -- as was one Long Island "father"? The result of these child-support efforts will not be men taking responsibility for such children. The result will be men refusing to sire such children at all. Unlike sexual intercourse, masturbating into a plastic cup has few concomitant benefits.

A handful of rare cases may exist where the identities of sperm donors need to be unmasked for medical reasons -- such as when a donor discovers that he has a fatal genetic disease that could not be tested for at the time of his donation. In all other cases, the identities of donors should be perpetually concealed. Moreover, these donors should not be granted any more rights or privileges than they arranged for at the outset. Our society would do best to view them no differently than the altruistic donors of other tissues and organs. If I donate my blood or even my kidney to a stranger, that affords me no right to socialize with him in the future and creates no legally recognizable relationship. As a recent divorce case in New York State clarified, I cannot even demand compensation for my donated organ if the marriage that it was based upon were to be sabotaged by the recipient's concealed infidelity. Why should society treat my donation any differently simply because it contains a germ-line cell rather than somatic tissue?

A generation of progressives -- women's rights advocates, gay rights advocates, supporters of artificial reproductive technologies -- have fought to transform the definition of "family" from one based solely upon molecular biology to one based upon love and mutual respect. In order to protect this progress, legislation is needed -- either at the state or national level -- to guarantee the rights of established families over the efforts of interloping sperm donors. The battle over sperm is just that latest fight in the ongoing struggle over reproductive freedom, yet we risk losing it even before we know that it is being fought. We should all get our Irish up.