Regarding the question on sperm donors’ parental obligations, the original question seemed to be more concerned with the anonymous sperm bank donor’s potential child support obligations. Your answer mentioned that in states that honor the Uniform Parentage Act, donors are absolved if the sperm was collected and disseminated by a licensed physician, as is presumably the case in most reputable sperm banks. However, is there precedence for an anonymous donor having been sued in a state that does not follow the UPA. Is there precedence anywhere for situation? One can imagine a “Made in America” scenario wherein a donor sues the parent for visiting rights to a child they discover carries their genetic material, but could the parent sue an unsuspecting donor using a reciprocating argument?
Maylson, welcome to the boards! It is customary in this forum to give a link to the column in question, so we are all on the same page. Your question is probably related to this:
Thanks, Maylson. I was actually thinking of adding a sentence directly responding to this point, and you’ve convinced me of the wisdom of doing so.
I think the answer is: There are no reported appellate cases in the U.S. that hold an anonymous sperm donor liable for child support. But in those jurisdictions that have not addressed the issue by statute, there is nothing preventing such a result.
Of course, as **Chronos ** has pointed out, practically, the anonymity thing probably explains the lack of cases.
I am wondering if the sperm bank could be subpoenaed to provide the name of the donor if a child support case was initiated. What would stop someone from going through the available donors, finding the wealthiest one and subsequently going back to the clinic with a lawyer?
In this case (not a parentage case), the petitioner was ultimately denied access to the donor’s identity, subsequently located him, and was then permitted to take his deposition: http://www.biojuris.com/natural/5-1-0.html
If that were indeed the case, what would stop a sperm bank from making donors truly anonymous; that is, having the donor of a sample unknown to anyone including the bank? Or is that already the case?
That report is some kind of horrifying to me. So basically men have little to no cboice, ever, about becoming fathers, and women have all the choice in the world. Seems very unfair to me and yet I can’t find a sensible way through this mess.
It can be a problem. Some states require donor information to be kept. I don’t know what the practice is in states that don’t explicitly require sperm banks to keep the information. OTOH, discarding the information could make it harder for them to win some cases like Johnson v. Superior Court, linked above. In that case the recipients (and the child) sued the sperm bank, alleging that it failed to disclose that the sperm they sold came from a donor with a family history of kidney disease called Autosomal Dominant Polycystic Kidney Disease (ADPKD).
Musicat, thank you for your welcome and notes on MB protocol, it’s greatly appreciated. Gfactor, thank you for your original report and thorough follow-up.
There are clearly a number of ways that the issue of donors remaining anonymous can be problematic. Probably, the cited Johnson case is the most likely. However, as sperm banks develop better screening methods one would hope cases like that would all but vanish. Presumably, donors waive all potential parental rights and responsibilities when they donate. So it is unlikely that a serious legal case could be made in the event that sperm bank records were compromised and a donor seeking a child, or parent seeking the donor scenario came up.
Ultimately, the most striking thing that I learned from Gfactor’s link to the Johnson case was the incredible volume of sperm that donor 276 deposited and the small fortune that he earned doing it. Career change … ;]
[Quibble]In states that have a UPA-like provision, donors don’t have any parental rights to waive if they use a licensed physician–they aren’t considered parents. Also, one cannot waive his responsibilities, only privileges and rights.[/Quibble]. As for contractual waivers, courts like the one in McKiernan say that the mom can’t waive the child’s child support or the child’s claim to parentage.
It is inded unlikely, especially in states with statutes recognizing that a donor who does it the right way isn’t a parent. Those claims are clearly barred.
The interesting one for me is this:
In some states, the provision for married women is different from the one for unmarried women. The one for married women says that the donor is not the father of the child if the woman’s husband consents; his consent is required because the statute makes him the father. What if:
The husband claims that he didn’t consent, either because he was impersonated, his signature was forged, or he was incompetent at the time of the consent. Can the donor (remember these statutes don’t distinguish between anonymous and known donors) seek a determination that he is the child’s father? Can he be required to pay support?
What if the wife is a bigamist. The husband who signed wasn’t her legal husband (she married him while still married to someone else) and her legal husband didn’t sign?
There’s also the flip side of this coin: Surrogate mothers who want to deny the genetic father and keep the child. Baby M is the most famous case, and since it was played out in my backyard, I followed it intensely.
Mary Beth Whitehead, the “surrogate mother” referred to genetic father as a “sperm donor,” named her husband as the father, and later ordered a DNA test on the child without mentioning her husband had had a vastectomy ten years prior to the insemination. She claimed a statement acknowleding William Stern as the genetic father was created by having “a blank page inserted in some other papers we had signed, then attached to the statement and unlawfully notarized.” She also said the fertility clinic might have “slipped up” and given her some other donor’s sperm. She questioned whether William Stern shouldn’t be considered a sperm donor and have no rights to the child because that’s what happened in articifical insemination by donor. “Because he didn’t intend to make a donation. Does intention change the law and make him a father?”
I haven’t tried a paternity case in years, and the law may have changed, but in my state, you could not establish paternity without proving at least one act of sexual intercourse. This would pretty much let sperm donors off the hook, since they never had intercourse.
I’d be a bit surprised if that was the way it still worked. Paternity used to be a lot more complicated to establish before DNA. I once had an Ohio lawyer who practiced before DNA matching explain to me how it worked. Basically, you had a trial in every contested case. You’d have to prove (paraphrase based on a conversation that took place more than five years ago here):
They did it.
She turned up pregnant.
Other stuff tending to eliminate other candidates (inconsistent blood type, timing, racial characteristics).
He said it sometimes came down to “the baby looks like candidate A.”
Anyway, the act of intercourse thing was probably an evidentiary requirement–not a prerequisite to paternity.
At common law the only admissible evidence of nonpaternity was that it was physically impossible for a husband to have had access to his wife. n7 However, since. Walker, the trier of fact may consider scientific evidence about the child’s blood type because it derives only from the mother and father. Garrett v. Garrett, 54 Ohio App. 2d 25; 374 N.E.2d 654; 1977 Ohio App. LEXIS 7011; 8 Ohio Op. 3d 41 (1977).
Other cases from this era permit the use of resemblance evidence. Many point out that it’s tough to review that evidence on appeal because the appellate court can’t review what the trial court saw.
Yup, it was evidentiary. This was back in the mid '90s, when DNA testing was relatively new. Even now, if a DNA test indicates 98% probability of paternity or better, it only creates a rebuttable presumption of paternity. There used to be a right to a jury trial on paternity–I’ve actually tried one to a jury. They were out long enough for me to hit the mens room and smoke about half a cigarrete
The case involved a 13-year old boy who was statutorily raped by his baby sitter. The Kansas Supreme Court upheld a child support order against him. Next comes the seek work order, I guess.
