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