Are Free, Non-Anonymous Sperm Donors Legally Fathers of All Resulting Children?
Recall the 20/20 story about Beth. 20/20’s episode depicted Beth’s situation as follows: Beth’s husband, Richard, inseminates his wife with donor-Drew’s sperm. Beth and Richard are shown lying next to each other in the hotel bed, as Beth waits for the sperm to (hopefully) do its work. Beth tells the reporter that it is important that Richard be there so he “can say he was there at conception. He will be the father of the baby.” But, is Beth right? Or is Drew, instead, the father of the child if Beth conceives with his sperm?
And what about Trent, or the married man whose face 20/20 blocked out? Is each of them the father of any child who is produced through his donation (in Trent’s case) or “natural insemination” (in the married man’s case)?
Parentage law tells us who is, and who is not, a legal parent. A legal parent is someone who, by virtue of a recognized tie to the child, is endowed with constitutionally protected rights and subjected to potentially onerous obligations. A legal parent can sue for custody or visitation, but also is obligated to support the child.
Women typically become legal mothers by giving birth to a child. (Complications can arise, however, when a woman gives birth to a child that was conceived with someone else’s egg or that was commissioned through a surrogacy arrangement.) Men become legal fathers in a variety of ways. A genetic tie is generally not sufficient, on its own, to make the biological father the legal father. He must also be married to the mother, have acted as a father, or have had his paternity acknowledged or adjudicated.
Most states have a special set of rules that govern the issue of parentage when children are conceived using assisted reproduction. These laws appeared for the first time in the 1970s, when artificial insemination with donor sperm became more common and more accepted.
Under the Uniform Parentage Act (UPA) of 1973, an anonymous sperm donor was not deemed to be the “legal father” of any resulting children as long as the insemination was performed by a licensed physician and the woman was married. (Whether or not the sperm donor was paid for his services was not a factor.) The woman’s husband, in turn, was presumed to be the legal father of the child, and that presumption could only be rebutted in exceptional circumstances. Many states either adopted the UPA expressly, or adopted their own statutes with similar provisions.
What Parentage Would Look Like, in the Cases I’ve Described, Under the Original Uniform Parentage Act
Under the original, 1973 version of the UPA that I just described, Beth’s husband would not be the legal father of any child resulting from a conception with Drew’s sperm, because the insemination was not handled by a physician. Whether Drew would have been the legal father of Beth’s child would depend on whether and when Drew admitted paternity (or had paternity adjudicated) or held himself out as a father.
Likewise, any child born to Christa, the woman who was inseminated by her partner, in the car, with Trent’s sperm, would not be governed by the assisted reproduction provisions of the UPA because she was neither married nor relying on the services of a licensed physician.
Like Drew, under the original UPA, Trent might or might not, have been established as a legal father depending on the actions he took following birth.
(In fact, neither Beth nor Christa became pregnant through the particular inseminations depicted on 20/20.)
What Parentage Would Look Like, in the Cases I’ve Described, Under the Revised Uniform Parentage Act
In 2002, the UPA was substantially revised. Among other changes, the UPA dropped the requirements that the insemination must be performed by a licensed physician, and that the woman must be married.
The revised UPA’s provision on assisted reproduction applies to any conception that relies on donor sperm, whether the identity of the donor is known or unknown, and whether the donor was paid or unpaid. The revised statute clearly provides that a sperm donor is not the legal father of any resulting child. As the comment to the applicable provision explains, “The donor can neither sue to establish parental rights, nor be sued and required to support the resulting child. In sum, donors are eliminated from the parental equation.”
Under this type of statute, Drew and Trent would thus be off the hook for any child-support responsibilities (and barred from invoking any parental rights of custody or visitation). But would these children have legal fathers?
In the case of Beth, her husband Richard would be the legal father ifhe consented in writing to the insemination.
And Christa’s female partner might be recognized as a second legal parent, depending on the law’s treatment of lesbian co-parents (about which I’ve written in a prior column).
In States That Follow the Original, 1973 UPA, or Have Their Own Laws Relating to Sperm Donation, the Parties to a Donation May Still Face Legal Risks
Only nine states, however, have adopted the 2002 version of the UPA. Some still follow the 1973 version, which eliminates the parentage of donors only for married women who are inseminated by doctors.
Other states have their own provisions, which may or may not produce the parentage result desired by the women who avail themselves of sperm donation. There have been cases going both ways—finding that a known sperm donor was indeed a legal father, and finding the opposite. The degree of involvement between donor and child often plays a role. And contracts designed to regulate these arrangements, and the parentage that flows from them, have been only inconsistently enforced. Unless the women who use donated sperm, and their donors, are fully-versed in the law of the relevant jurisdiction, they are wading into the waters of sperm donation at some risk.
The Legal Dangers of “Natural Insemination” by a Sperm Donor
Perhaps the most momentous risk is faced by the unidentified married man who participates in “natural insemination” with many women. The statutes providing for the non-parentage of sperm donors define donors to be men who provide sperm for “assisted reproduction,” which is in turn defined as a “method of causing pregnancy other than sexual intercourse.” This is so, according to the 2002 UPA, “irrespective of the alleged intent of the parties.”
Under these statues, then, getting a woman pregnant by having sex with her (including in the case of “partial natural insemination”) isnot assisted reproduction at all. It’s no different from a one-night stand from which a pregnancy results. Thus, whether or not the pregnancy was intended or desired, and whether the sperm “donor” intended to be a father or not, he may find that he is one. Children that result from a sexual union are governed by the conventional rules of parentage. The unwed father (here, the sperm “donor”) may be a legal father for purposes of child support—especially based on the genetic tie alone, if paternity can be established. And he may be able to insist on playing a part in the children’s lives, even though the women who turned to him for sperm want nothing of the sort.
It may be true, as Elizabeth Vargas marvels at the beginning of the 20/20 piece story, that you can find absolutely everything on the Internet. But fresh sperm may not be the only thing you need to conceive a child who will have the parents (and only the parents) that you intend it to have. Given the structure of parentage law, a doctor and a lawyer may play important roles as well.
Joanna L. Grossman, a Justia columnist, is a professor of law at Hofstra University. She is the coauthor ofInside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011) and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.
