LEGAL RESEARCH ON HUMAN REPRODUCTIVE TECHNOLOGY

1. Legal rights of sperm donors.

In the Matter of Adoption of Michael, 166 Misc.2d 973 (1996).

Facts: The husband was not married to the child’s mother either at the time she underwent artificial insemination or at the time the child was born. In the agreement between the medical laboratory and the sperm donor, the donor waived any rights to offspring, and the facility agreed not to reveal his identity. After they were married, the husband sought to adopt the child.

Issue: Is the husband required to make an attempt to notify the sperm donor of his intentions to adopt the child?

Holding: No.

Discussion: Section 73 of the Domestic Relations Law provides that a child “born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine” is the legitimate child of both spouses where they both execute a written consent in the form required therein. Where a man donates his sperm to a medical facility to be used for the purpose of artificial insemination, and all parties agree from the outset that they are forever to remain anonymous from each other, there is no reason why the forfeiture of the man’s parental rights without further notice should depend upon the luck of the draw. The unknown donor in this case, has forfeited his parental rights. Thus, notice is not required to be give to the unknown donor.

Lamaritata v. Lucas, 823 So.2d 316 (2002).

Facts: The donor and the recipient entered into a contract whereby the donor provided sperm to the recipient with the expectation that she would become pregnant through artificial insemination. The agreement provided that if childbirth resulted, the donor would have no parental rights and obligations associated with the child. The donor, in an attempt gain parental rights of the twin boys who were born to Ms. Lamaritata argued that he was not a sperm donor but instead the biological father, and thus should be afforded parental rights.

Procedural History: Ms. Lamaritata, the child’s mother, appeals a supplemental

final judgment which had granted Mr. Lucas (1) unsupervised, overnight visitation on alternating weekends and visitation on the day after Christmas and on Father’s Day: (2) telephone calls from the children when thy are with their mother; and (3) the right to confer with the children’s teachers and attend school events and activities.

Issue: Does a sperm donor have any legal parental rights?

Holding: No.

Discussion: In an attempt to avoid the enforcement of the contract, Mr. Lucas argued that he was not a sperm donor. Instead, he argued that he was part of a “commissioning couple” with the mother. A commissioning couple is defined as “the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents.” There were no facts to establish this, and the intent of the parties was established by contract. A person who provides sperm for a woman to conceive a child by artificial insemination is not a parent. Thus, the sperm donor here has no legal parental rights.

Johnson v. Superior Court, 80 Cal.App.4th 1050 (2000).

Facts: Petitioners decided to conceive a child through the use of a sperm donor upon the recommendation of their infertility doctor. Cryobank sold the couple frozen sperm, and informed them that the anonymous sperm donor had been fully tested and genetically screened. Even though Cryobank knew of the donor’s family history with kidney disease, none of this information was provided to the couple at the time they purchased the sperm.

Procedural History: Petitioners sued the CA Cryobank, a sperm bank facility, claiming the sperm bank had failed to disclose that the sperm they sold to petitioners came from a donor with a family history of kidney disease. Subsequently, petitioners sought to take the deposition and obtain documents from the person believed to be the anonymous sperm donor.

Issue: Is an agreement precluding disclosure of the donor’s identity and other information pertaining to the donor enforceable?

Holding: No.

Discussion: It must be determined first whether the Cryobank agreement with the Johnsons is contrary to express provisions of law. Based on family code section 7613, inspection of insemination records including a sperm donor’s identity and related information contained in those records, may be disclosed under certain circumstances. Thus, to prohibit disclosure of the donor’s identity and related information in all circumstances would be against the policy expressed in the statute. The real parties in interest contended that petitioners are precluded from deposing the sperm donor because to do so would violate his constitutional right to privacy. Although the sperm donor does have a right to privacy in his medical history and identity, such a right does not preclude his disposition and the production of records requested in the deposition subpoena. The constitutional right to privacy is not absolute and must therefore be balanced against other important interests. There are compelling state interests in this case. First, the state has a compelling interest in making certain that parties comply with properly served subpoenas and discovery orders in order to disclose relevant information. Second, the state has an interest in seeking the truth in court proceedings. Third, the state has a compelling interest in ensuring that those injured by the actionable conduct of others receive full redress of those injuries.

Conclusion: The trial court is further directed to grant petitioners’ motion to compel and order John Doe’s deposition and production of documents.

2. Duties of a husband who has consented to artificial insemination of his wife

People v. Sorensen, 68 Cal.2d 280 (1968).

Facts: Seven years after defendant’s marriage it was medically determined that he was sterile. His wife desired a child, either by artificial insemination or by adoption. About fifteen years after the marriage defendant agreed to the artificial insemination of his wife. Both signed an agreement requesting t physician to inseminate the wife with the sperm of a white male. The semen was to be selected by the physician, and under no circumstances were the parties to demand the name of the donor. A male child was born, and the defendant was named as the father. For about four years they all lived together happily. Then Mrs. Sorensen separated from the defendant, and she wanted no support for the boy. Two years later Mrs. Sorensen became ill, so she applied for public assistance under the Aid to Needy Children Program. Defendant paid no support for the child since the separation. Defendant was charged with violating section 270 of the
Penal Code, willfully failing to support a child born to his wife during marriage through her artificial insemination by an anonymous sperm donor.

Procedural History: Defendant appeals his conviction of Penal Code 270.

Issue: Is the husband of a woman, who with his consent was artificially inseminated with semen of a third-party donor, guilty of the crime of failing to support a child who is the product of such insemination, in violation of section 270 of the Penal Code?

Holding: Yes.

Discussion: The law is that defendant is the lawful father of the child born to his wife, which child was conceived by artificial insemination, and his conduct carries with it an obligation of support within the meaning of section 270 of the Penal Code. The term “father” as used in section 270 cannot be limited to the biologic or natural father as those terms are generally understood. The determinative factor is whether the legal relationship of father and child exists. In CA, legitimacy is a legal status that may exist despite the fact that the husband is not the natural father of the child. Defendant is the lawful father of the child conceived through artificial insemination and born during his marriage to the child’s mother.

3. Surrogacy

In re Marriage of Moschetta, 25 Cal.App.4th 1218 (1994).

Facts: Robert and Cynthia decided to start a family, but Cynthia was infertile, so they met with a surrogacy broker. They all signed an agreement which provided the surrogate would be artificially inseminated with Robert’s semen so as to bear his “biological offspring.” The child was born, seven months later the Moschetta’s separated. Cynthia filed a petition to establish a parental relationship, alleging she was the “de facto mother” of the child. Furthermore, the surrogate joined the action seeking parental rights.

Procedural History: Appellant father appealed the judgment of Superior Court, which held that appellant and respondent surrogate mother were the legal parents of the infant, and awarded appellant and respondent joint legal and physical custody of the child. All parties, including respondent’s wife, agreed that their surrogacy agreement was not enforceable.

Issue: Is a traditional surrogacy contract enforceable?

Holding: No.

Discussion: Traditional surrogacy is an arrangement where a woman is impregnated with the sperm of a married man with the proper understanding that the resulting child is to be legally the child of the married man and his infertile wife. In traditional surrogacy the so-called surrogate mother is not only the woman who gave birth to the child, but the child’s genetic mother as well. In the present case, there has been no formal consent to adoption, so there is only the surrogacy agreement to deprive the surrogate of the legal parental tie she would otherwise possess. The surrogacy contract is incompatible with the parentage and adoption statutes already on the books. Thus, the agreement is unenforceable. Couples who resort to traditional surrogacy because the female does not have eggs suitable for in vitro fertilization, have no assurance their intentions will be honored in a court of law.

In re Marriage of John A., 61 Cal.App.4th 1410 (1998).

Facts: Luanne and John agreed to have an embryo genetically unrelated to either of them implanted in a woman, a surrogate, who would carry and give birth to the child for them. After the fertilization, implantation, and pregnancy the two split up. Luanne claimed that she and John were the lawful parents, but John disclaimed any responsibility. The surrogate wanted nothing to do with the child.

Judicial History: The trial court held that Luanne and John were not the legal parents of the child because there was no biological connection with the minor child they intended to procreate by surrogate, using an embryo and sperm not of either party, and as a result appellee owed no child support. Luanne filed an appeal.

Issue: Is a husband who consents to artificial insemination the lawful father of the child ?

Holding: Yes.

Discussion: John contends that the surrogate is the child’s mother and her husband is the child’s legal father. Under Family Code section 7613 a husband who consents to artificial insemination is treated in law as the father of the child by virtue of his consent, there is no reason the result should be any different in the case of a married couple who consent to in vitro fertilization by unknown donors and subsequent implantation into a woman who is, as a surrogate, willing to carry the embryo to term for them. In the present case Luanne is situation like a husband in an artificial insemination case whose consent triggers a medical procedure which results in pregnancy and eventual birth of a child. Moschetta is distinguishable because it involved the claim of a woman who gave birth to the child, contributed the egg, and who wanted the child enough to seek custody. There is a difference between a court’s enforcing a surrogacy agreement and making a legal determination based on the intent expressed in a surrogacy agreement. Even though Luanne and John are not biologically related to the child, they are still her lawful parents given their initiating role as the intended parents in her conception and birth.

4. Rights of intended mothers

Robert B. v. Susan B., 109 Cal.App.4th 1109 (2003).

Facts: Robert and Denise contracted with an anonymous ovum donor to obtain donor’s eggs for fertilization with Robert’s sperm. Meanwhile, Susan went to the same fertility clinic with the intent of purchasing genetic material from two strangers who would contractually sign away their rights. About thirteen embryos were produced for Robert and Denise. Through an apparent error by the clinic, Susan received three of these embryos. Susan gave birth to a son from the embryos, and Denise gave birth to a baby girl. Robert and Denise were informed of the mistake, and they brought an action seeking custody of the baby boy.

Procedural History: The Superior Court found Robert was the child’s father and Susan was the child’s mother. Both parties appeal.

Issue: Does a woman who was the “intended mother” have any parental rights over a child when she did not give birth to the child and is not biologically related?

Holding: No.

Discussion: Susan appeals the court’s paternity order. She contends that Robert must be deemed a sperm donor in order to protect the integrity of her single parent family unit. In order to be a donor a man must provide semen to a physician for the purpose of artificially inseminating a woman other than the donor’s wife. It is uncontested that Robert did not provide his semen for the purpose of inseminating anyone other than Denise. Thus, Robert must be considered the father. Denise contends that she should be accorded standing as an interested person within the meaning of Family Code section 7650. Section 7650 permits “any interested person to bring an action to determine the existence or nonexistence of a mother and child relationship. However, a biologically unrelated woman is not an interested person under this section. Denise contends she should be entitled to asset her own parental status as the child’s intended mother. The concept of intended mother is employed only as a tie-breaker when two women have equal claims by genetic consanguinity and childbirth. Here, there is no tie, and thus the trial court properly declared Robert as the child’s father and Susan as the mother.