Saturday, 5 January 2013

Another Sperm Donor Controversy: Part 3 "Are you the Father?"

Yet another case has appeared in the news in which a man who thought that he was a 'sperm donor' has been ordered to pay child support.  In this case, the scenario occurred in Kansas, with remarkably similar details as the U.K. case.  You can read further details here:  CBC News article on Kansas sperm donor issue or here :  CNN coverage on Kansas sperm donor controversy . 

It is evident that, although it is extremely rare, sometimes individuals who only intend to be sperm donors may be held to have some level of legal responsibility for the children that were conceived by their donation.  On the other hand, many men find themselves with the full spectrum of legal responsibilities for a child that resulted from a very brief encounter, in which the man lacked any intention for the conception of a child. 
Men who have a sexual encounter  that results in a child, though, and men who donate their sperm outside of the legal parameters for doing so, like the English “sperm donor” will probably be legally construed as a “parent” of the child, not a mere donor.  The resulting irony is that the donor, who intentionally assists with the conception of the child, is sheltered from legal responsibility for the child whereas the sexual partner, who has no intention for the conception of a child may end up with decades of legal obligations.  This ironic legal distinction is simply the result of the assisted human reproduction laws’ goal of encouraging a sufficient pool of sperm donors for the convenience of individuals seeking donor-assisted conception services. 
Consequently, the intention to create a child is irrelevant in determining whether or not an individual will have legal responsibilities for the child.  In the case of sperm, egg or embryo donors who utilise the public donation scheme or draft an appropriate legal document delineating their roles, there will be no legal responsibilities for the child resulting from their donation.  Instead, the standard parental legal responsibilities for the child will be linked to the donor recipient and usually his or her partner or spouse.  The donor is therefore considered to merely be a donor, rather than a parent.
Given the clear limitation of the responsibility of sperm (or egg or embryo) in the relevant laws, there ought to be no concern on the part of donors that they may find themselves in a situation like that of the man in the recent English case.  Thus, the law recognizes a distinction between a “sperm donor” who merely intends that his sperm be used to conceive a child for which he will have no responsibility and a man who merely intends to have an intimate experience with a woman and neither intends to conceive a child nor intends to have any responsibility for any resultant child.  The law places emphasis not on the intention to conceive a child, but on the choice of the manner of interaction with the other parent. 
What the law clearly supports is the principle that everyone must take responsibility for his or her reproductive actions.   There is a false sense of security in the “one-night stand” type relationship that bears no reality to the legal consequences of such an encounter.  Similarly, “donors” who choose to enter into private donation relationships should take the time and spend the money to have an appropriate legal agreement drafted which reflects the intentions of the parties involved. 
In the midst of the tangle of parental and donor’s legal responsibilities; however, is the intrinsic reason for these responsibilities: the child.  Family law governing the responsibilities of children’s guardians exists to ensure that children’s needs are met by the adults who chose to conceive or parent them.  Whereas adults can engage in a range of reproductive choices, freedoms and options, the rights and concerns of the children that are created through the exercise of these options must be paramount.
Of course, in the case of the English man who is facing a child support order for the two children conceived through his sperm donation, the legal upheaval that now exists could have been avoided if the parties had attended at a lawyer’s office prior to entering into the arrangement.  It is always more costly and difficult to seek legal counsel after a problem has been created rather than to seek assistance from a lawyer with preventing such a problem.