Who's your daddy? Defining paternity rights in the context of free, private sperm donation.

• Author: Gill, Lauren

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. History of Artificial Insemination B. Sperm Donors and the Donation Process C. Defining Free, Private Sperm Donation II. SOCIETAL VALUE OF FREE, PRIVATE SPERM DONATION A. Cost B. Issues Related to Anonymity C. Health Concerns D. Availability III. LEGAL ISSUES SURROUNDING FREE, PRIVATE SPERM DONATION A. Paternity 1. Legal Landscape 2. Application of Paternity Laws to Commercial Sperm Donation 3. Application of Paternity Laws to Private Sperm Donation a. Failing to Comply with the Applicable Statute b. Distinction Between Known and Anonymous Donors c. Written Agreements Are Important, but Not Necessarily Dispositive d. Decreasing Reliance on Biology to Determine Paternity B. A New Notion of Family IV. RECOMMENDATIONS A. How to Resolve Paternity Issues When Using Free, Private Sperm Donation 1. Model Statute 2. Enforcing Written Agreements CONCLUSION INTRODUCTION

Meet Trent Arsenault. By all accounts, he is a desirable bachelor: thirty-six years old, tall, blonde, gainfully employed in Silicon Valley, a U.S. Naval Academy graduate, and free of sexually transmitted diseases (STDs). (1) Like many Americans, he has his own website where visitors can view his baby photos, read about his hobbies and interests, and even learn about his personality traits. (2) But unlike most Americans, Trent describes himself as a "donor-sexual," donating his sperm to couples who, either through choice or necessity, are forgoing commercial sperm banks in their attempt to conceive a child. (3) He says he donates because "sperm donation is one more way he can help those in his community who may be in need." (4)

Surprisingly, Trent is not all that unique, as more and more men are willing to bypass the commercial market and donate their sperm for free instead. (5) Unlike commercial sperm banks, which are, at least, minimally regulated by the Food and Drug Administration (FDA), the free online market is currently entirely unregulated, although many donors will agree to submit to background checks and regular testing for STDs. (6) This market for free, private sperm donors has arisen to satisfy the demand for sperm during a time when artificial insemination by commercial sperm has become increasingly more expensive. (7) Cost is not the only issue, however: many individuals want their children to grow up knowing their natural fathers, which is not possible with commercial sperm because sperm banks require anonymity until the child is at least eighteen years old. (8)

This Note argues that free, private sperm donation serves a valuable societal purpose by allowing women and couples, who would not otherwise be able to conceive a child, to have the family they have always wanted. It does, however, raise legal issues that remain unsettled, particularly concerning the parental rights and liabilities of the sperm donor. It is up to either Congress or state legislatures to provide uniform rules governing a sperm donor's parental rights in order to protect intended parents and sperm donors from inconsistent laws and legal interpretations. (9) Because free, private sperm donation and the websites that facilitate it are likely protected under the Constitution's penumbra of privacy rights, (10) it is imperative that the legal rights of all parties involved are clearly delineated ahead of time to avoid potential controversies over a resulting child.

Moreover, this Note supports enactment by the legislature of a default rule that removes all paternal rights and liabilities from a private sperm donor who donates his sperm for free. This approach would, in effect, treat him as an anonymous donor and give parental rights to the intended parents, unless a written agreement exists to the contrary. (11) These written agreements should be presumed valid and enforceable in all states, unless a court finds an established parental relationship between the donor and the conceived child.

Part I of this Note discusses the background of artificial insemination, the evolution of the fertility industry in the United States, and the growing online market of private sperm donation. Part II reviews the benefits and disadvantages of free, private sperm donation, ultimately concluding that although this type of donation serves a beneficial societal value, it has potentially devastating legal consequences to the parties involved. Part III of this Note then discusses relevant statutes and case law concerning parental rights of sperm donors, particularly as to how the unsettled law around these rights may affect free, private sperm donation. Finally, Part IV proposes solutions to the paternity issues implicated by free, private sperm donation.

1. BACKGROUND

   In order to fully appreciate the rise in popularity of free, private sperm donation, it is important to understand the context in which it came about. This Part describes the history of donor-assisted reproduction and how it has developed into a multimillion dollar industry. This Part then explains the emergence of the free sperm donor market and how this type of sperm donation works.

   1. History of Artificial Insemination

      Infertility is a condition long recognized in our cultural heritage, plaguing millions of women and men as a silent and irreparable curse. In desperation, women have tried a multitude of remedies to conceive a child, from "dr[inking] potions of mule urine and rabbit blood [to] dous[ing] themselves with herbs believed to induce pregnancy." (12) Although artificial insemination (AI) (13) is typically thought of as a modern invention, some cultures were aware as early as the third century that a woman could be impregnated without having sexual intercourse. (14) The first recorded AI of a woman occurred over two centuries ago in 1785, when noted Scottish anatomist and surgeon Dr. John Hunter (15) reported that he had successfully inseminated a London woman using her husband's sperm. (16) One hundred years later, Dr. William Pancoast performed the first AI on a woman using donor sperm in 1884. (17) AI did not begin to become widely accepted, however, until the 1940s when a desire to repopulate after World War II, advances in birth control, and a "liberalization of social norms" helped increase the popularity of the procedure. (18)

      Most sperm banks originally began as nonprofit, in-house clinics for the treatment of male infertility. (19) Initially, these clinics used sperm only from their patients' husbands, storing and preserving the deposit for future use. (20) Although the market for this service was small at first, demand grew quickly for donor sperm from women who either had an infertile husband, a husband with a genetic disease, or no husband at all. (21) Sperm banks slowly began to respond to this demand by accepting donations from men with no relation to their patients, realizing in the process that there were numerous advantages to a more "impersonal system." (22) As Professor Debora Spar wrote in her book, The Baby Business,

      By moving toward the market--soliciting donors and paying them a nominal fee--the clinics could reduce their dependence on their patients' circles of friends and impose a more anonymous form of quality control. Using donated sperm, women (and their husbands) wouldn't actually have to choose a man to father their child. They only had to choose his sperm. (23)

      By the late 1980s, commercial sperm banks had become a common feature of the fertility landscape, with over 400 clinics in operation. (24) In 1987, the federal government conducted its first and only survey of the AI market, finding that roughly 11,000 physicians administered AI services to nearly 172,000 women, 22 percent of whom used commercially purchased semen. (25) By 2009, commercial sperm banks were part of a $75 million per year industry (26)--a remarkable progression from the nonprofit clinics that preceded them. B. Sperm Donors and the Donation Process

      At first, sperm donors were typically medical students, chosen for their physical and genetic characteristics, including their "knowledge of the physiology and anatomy of reproduction [which] apprised them of the seriousness of the donor's role in A.I." (27) Gradually, some sperm banks began specializing in providing high-quality sperm or recruiting particular types of donors, including so-called "genius sperm banks." (28) Others filled more unique roles by selling primarily to lesbian couples or offering more information to their recipients, such as photos, videos, or audio recordings of each donor. (29)

      Reimbursement for sperm donation varies widely among clinics due to the lack of a set standard for reasonable compensation. For example, the Northwest Cryobank, located in Spokane, Washington, advertises on its website that sperm donors can earn as much as $1,000 a month for donating, (30) whereas the California Cryobank, located in Los Angeles, California, reimburses donors up to $1,200 a month with additional incentives such as movie tickets or gift certificates to those participants who expend "extra time and effort." (31) Generally though, men make between $50 and $100 per donation. (32)

   3. Defining Free, Private Sperm Donation

      The Assisted Reproductive Technology (ART) industry is constantly evolving and expanding. (33) Roughly one in six couples experience infertility in the process of starting a family and must seek medical treatment. (34) And as the number of alternative-lifestyle families rises, so will the need for assisted reproductive services by couples who cannot procreate naturally. Although sperm banks continue to be a valuable resource for couples experiencing male infertility, many people have begun to look elsewhere for sperm.

      Recently, a new online market of free sperm donors has emerged for married heterosexual couples, gay (35) and lesbian couples, and single women unable to conceive children naturally. This market includes advertisements on Craigslist, (36) Yahoo Groups, (37) and...