In the first part of this discussion, I come to the following conclusion:

An argument I reject, though, is the notion that the child support payments should be required on the basis not of fairness (it’s hard to argue that the cuckolded fellow deserves it… though some do make that argument), but rather because that’s what’s in the best interest of the child. It’s an argument that sounds solid (bulletproof, even) at the base of it, but it’s an argument that is frequently jettisoned in the name of practicality. In fact, rather than being based in the moral conviction it’s often clothed in, I think it’s mostly based on pragmatism. Somebody has to help the mother take care of the child. Might as well be this guy.

I go on to mention that one example of the “best interest of the child” taking a back seat is sperm donation.

According to Estacado state law, a sperm donor is not considered a legal parent unless he is married to the mother at the time of conception. I choose Estacado state law because that’s the state that I know because Clancy had to take a jurisprudence exam in an effort to get medical licensure there. I assume that to the extent that state law has caught up with fertility practice, most laws are probably along those lines. In some states it may be the case that as long as the father is known (at the time of conception) then the father is responsible. In no state that I am aware of are anonymous donors (even if later unveiled) expected to pay child support.

In the case of a traditional (“live”) conception, the law (as far as I am aware) takes the view that it does not matter what the circumstances were prior to conception, the father is the father and has all of the rights and responsibilities accorded to him. If a man and a woman signed a contract stating otherwise, that contract can be (always is?) declared void. If she takes the sperm from a spent condom, it doesn’t matter. I’ve even heard of cases where the woman was technically committing an illegal act when the child was conceived (he was not of the legal age of consent) and the father is still left on the hook (and oftenly I’m not sure that’s wrong since I frequently disagree with the underlying AOC law anyway).

The legal idea (as I understand it) behind contract nullification is that the child was not a party to the contract but was an interested party and therefore it is not valid. The other circumstances are probably in part for simplification (a man can always claim it was a stolen condom and how can she prove otherwise?) and in part the idea that the child did not get to choose the circumstances in which he or she was conceived and therefore his rights trump those of whatever agreement the parents reached.

Except for sperm donation. In that case, the child had no say in how he or she was conceived. He or she had no more say in what kind of home or financial situation he or she was brought into than any other child. But even setting aside financial support, we legally shield the kid from knowing who one of his parents even is.

From a practical standpoint, this is necessary. If the anonymity of donation is not preserved, the market for donors will dry up. The fear of a child rolling up on his doorstep in twenty years would scare the vast majority of them off. It would make finding a wife of their own harder if he came clean or cause damage to his marriage if he did not and the child found him. Though no jurisdiction has said so to date, the mere possibility that a donor could even theoretically be left on the hook for child support would scare men off. I personally think that men should be worried about these things anyway because I do think that at some point down the line a judge will declare that knowing one’s parentage is a civil right Even though it’s unlikely that child support would be an issue, the havoc wreaked would be significant.

So knowing that we cannot have a robust artificial insemination industry – and believing that having this is a good thing – without preserved anonymity and/or indemnity from child support payments, we treat this as different. This can lead to some tragic circumstances wherein after having donated the sperm a man might reconsider whether or not he wants to be involved (or simply know that it has been used), he does not have the ability to do so (again, as far as I know). A man that donates his sperm to a nice lesbian couple he knows would have no right to claim paternity in the future without the mother’s consent. He could come to regret that decision and it would be heartbreaking for him. But all in all, I think that the law has it right on this one. Men need to think long and careful before donating their sperm before assuming with certainty that they will want nothing to do with the results.

But there isn’t any good reason that I can think of as to why the law should, in the case of live conception, take one stance pretty consistently because it’s in the best interest of the child… then, in another circumstances, argue that a woman’s right to become pregnant by alternative means should trump the best interest of the potential child, which would include two parents and the financial support of them.

I am personally not in favor of the concept of “male abortion”, supported by some, which is that a man should have the right to forfeit all rights and responsibilities of a child that he doesn’t want. I can’t really get into why without discussing the abortion issue at length, and I would like to avoid getting into that mucky terrain. It does seem to me, however, that there ought to be an opt-out that two parents can agree to for live conceptions the same way that they they currently do so for artificial conception.

Sidenote: Much of this post could be moot if such provisions do exist, but I’ve never heard of it and I have pretty frequently heard the inverse. I’ve heard of cases where parental rights were waived but obligations remained in-tact. If I’m wrong about this, please cite where I am wrong and I apologize for wasting everyone’s time.

The most immediate problem with this waiver, from a government’s point of view (as well as a taxpayer’s), is that it’s possible that the government will have to pick up where the extant father left off. This does become less of an issue with artificial insemination because presumably if they have the money for that, then they have the money to take care of the child. But as Octomom has recently demonstrated, this is not necessarily so. Further, any parents aware enough to be drafting paternity-waiver contracts are also more likely to be more educated and have more resources than the average unenthusiastic set of parents.

I do see, however, some good to come out of such laws. It runs against stereotypes, but there are cases where women don’t want a man to wear a condom because it’s uncomfortable for her or otherwise impedes her enjoyment. Or maybe cases where he has difficulty performing with a condom and doesn’t want to risk conception (with the attendant obligations) and she wants to allay those because she is on the pill or is infertile. Some sort of waiver in that regard could be helpful. Right now he has no choice but to trust her or to abstain.

But I came upon this idea not as a way for men to opt out, but as a way for women to. I recently read an article from the perspective of a woman that took the adoption option and she mentioned that one of the hardships was that the father was reluctant to sign off. So my first thought was that he shouldn’t have to (if it’s the difference between abortion and adoption), but on second thought I do think that he should have a say. The problem with the status quo is that if you give him a say, then you are saddling her with responsibilities and in that sense encouraging women like her to abort. So I was thinking that it would be good if there were a way that the baby’s father could get dibs on his child before sending him to an agency and to absolve the woman of responsibility to disuade her from either aborting or putting the child up for adoption without his knowledge.

Several years ago I had a conversation with a young woman that had an abortion over the father’s objections. He offered to take full custody and after birth would require nothing from her (they weren’t a couple). She said that she would have carried to to term, but that he couldn’t make good on his promise. As it happens, I didn’t believe her protestations, but such things could happen. I know that if I had impregnated someone that wanted to abort, I would want to make whatever offer I legally could to prevent the abortion from happening. If her reasoning is that she can’t simply have the child and walk away, legally speaking, I’d like her to not be able to hide behind that rationale.

It’s possible to divorce the mother waiver from the father waiver, if that would be required. We could allow women to give the baby up to the father with no obligations while not giving men an “out” when they get a woman pregnant. The rationale would be breathtakingly simple: She carried the baby and she gave birth to it; she did her part.


Category: Courthouse

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2 Responses to Sperm Donation, Live & Otherwise

  1. Peter says:

    If she takes the sperm from a spent condom, it doesn’t matter.

    I’m not sure if that ever actually happens, except of course in a Notorious Sex-Related Blogger’s stories.

  2. trumwill says:

    I’d imagine that cases of it happening are vanishingly rare. I’m also relatively certain that there are more men that say that’s what happened than men to which it actually occurred. A woman that wants to get pregnant against the wishes of the man would more likely just stop taking birth control and ask him not to use a condom.

    Interestingly, a higher court in Illinois ruled that a man may have some options if he can prove that’s what happened. That’s part of the problem, though… how would a guy prove it? So the court allowed the father to sue the mother, but child support obligations were not vacated.

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