Who's Your Daddy? Defining Paternity Rights in the Context of Free, Private Sperm Donation

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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. …