The Legal Treatment of the Parental Rights and Obligations of Sperm Donors

Author:A. Jamie Cuticchia
Position:Duke Comprehensive Cancer Center, Duke Institute for Genome Sciences & Policy, Duke University School of Medicine, USA. North Carolina Central School of Law, North Carolina Central University, USA.
Pages:16-22
16 The Open Law Journal, 2008, 1, 16-22
1874-916X/08 2008 Bentham Open
Open Access
The Legal Treatment of the Parental Rights and Obligations of Sperm
Donors
A. Jamie Cuticchia*
Duke Comprehensive Cancer Center, Duke Institute for Genome Sciences & Policy, Duke University School of
Medicine, USA. North Carolina Central School of Law, North Carolina Central University, USA.
Abstract: The increasing availability and use of donor sperm for artificial insemination along with the changing defini-
tion of family has created a new and evolving area of law. Where sperm donation initially was a completely anonymous
procedure, there is increasing interest both in the progeny of artificial and insemination to learn more about their donor fa-
ther. This has largely been driven by advances in the Human Genome Project and a better understanding of genetics, fam-
ily history, and disease. Additionally, studies have shown a rapid increase in the desire of sperm donors to know more
about their offspring. Singe women who wish to have children as well as lesbian couples are more likely to seek donor
sperm from men with whom they have some existing relationship. In these cases, the actions of the donor can have sig-
nificant impact on the obligations that such donors may incur as such as financial support.
INTRODUC TION
With the continually increasing scientific advances in the
area of human fertility there comes an assortment of medical
technologies aimed at assisting human reproduction. Such
technologies include in vitro and in vivo fertilization, embryo
implantation, non-maternal surrogacy, and artificial insemi-
nation. Of these technologies, artificial insemination is the
most mature and most easily accomplished (Walters, 1996).
Presently there is no national reporting mechanism for the
number of births resulting from artificial insemination with
donor sperm, due largely to the privacy needs of the parties
involved. However, it has been estimated that approximately
37,000 – 38,000 births occurred in 2006 (Harmon, 1996).
Most cases of artificial insemination occur in vivo, wher e the
sperm is introduced directly into the putative mother’s
womb. In some cases, it is medically necessary to perform
the insemination of an ovum previously removed from the
mother (or some cases a donor female) followed by the im-
plantation of the human embryo. This process has been
commonly referred to as “making test tube babies,” since the
fertilization occurs outside the womb (Test Tube Babies,
PBS Television Broadcast, 2006). While the most common
reason for undergoing artificial insemination is a need for
viable sperm (e.g., where a husband is infertile, where a sin-
gle-woman chooses to give birth without a male partner,
where lesbian couples desire children, etc.) there are health
reasons where donor sperm may be required. Two of the
most common health reasons are to prevent passing of ge-
netic disease from the father to the child or to prevent com-
plications due to Rh-factor blood incompatibility, which can
lead to a high incidence of still births (Rice, 2006, p. 1055).
*Address correspondence to this author at the Duke Comprehensive Cancer
Center, Duke Ins titute for Genome Sciences & Policy, Duke University
School of Medicine, USA; Tel: 919 681 9646; Fax: 919 681 3494; E-mail:
Jamie.cuticchia@duke.edu
Donor semen may be used in two types of artificial insemi-
nation. Where the donor is the husband of the recipient, the
process is referred to as homologous insemination. In all
other cases, the process is referred to as either heterologous
or donor insemination (Yaworsky, 1991). This manuscript
will discuss the evolving law as it relates to donor insemina-
tion.
SCIENTIFIC STUDIES
In 1779 Lazaro Spallanzani, an Italian priest, established
that in order for an embryo to be formed, physical contact
between the egg and sperm must occur
(http://www.cryobank.com). While Spallanzani restricted his
experiments fish, frogs, and canines; eleven years later th e
surgeon Dr. John Hunter reported that the “had successfully
inseminated the wife of a linen draper, using her husband’s
sperm” (http://www.cryobank.com). Spallanzani is credited
by some for first noting that cooling sperm with snow caused
them to become motionless (http://www.cryobank.com). As
far back as the 1930’s women in search of sperm turned to
their physicians for a solution. Much like the state of vegeta-
bles before Clarence Birdseye invented the flash-freeze
process, the mother was often was provided with the most
readily available sample “often the closest med ical student at
hand. (http://www.cryobank.com).” However, it was not
until World War II that further research showed that sperm
could be frozen and thawed and still survive. It was in 1953
that Dr. Jerome K. Sherman, an American physician, devel-
oped a protoco l for the freezing and thawing of human sperm
in such a way that the sperm were capable of fertilizing an
ovum (http://www.cryobank.com). The 1970’s, known as an
era of sexual liberation and the proliferation of birth control,
was paradoxically the era for the establishment of commer-
cial sperm banks. The most well-known, California
Cryobank, was established in 1977 and continues to operate
today (http://www.cryobank.com). Today, Scandinavian
countries lead the adoption of sperm banks in Europe. Cryos
International is the largest multi-national collection of

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