In with New Families, out with Bad Law: Determining the Rights of Known Sperm Donors through Intent-Based Written Agreements
Garcia, Maria E., Duke Journal of Gender Law & Policy
U.S. society is changing. Just turn on the television and see. Each week, millions of devoted fans tune in to shows like "Modern Family" and "The New Normal," which portray the lives of "non-traditional families," including same-sex couples with adopted children, surrogate mothers, and single parents. (1) The market for television shows that feature "non-traditional families" demonstrates that U.S. society and values concerning the "traditional family" are changing and accepted. (2)
Presently, U.S. society is no longer confined by the "Leave it to Beaver" (3) conception of the traditional family unit. Statistical data gathered in the 2010 U.S. Census demonstrates that over the last ten years, husband-wife households made up less than 50% of all U.S. households for the first time in U.S. history, while unmarried opposite sex households increased by 40%, and same-sex households increased by 80%. (4) In accordance with popular culture's evolution of the family unit, U.S. law has also evolved to reflect the rise of "non-traditional families." For instance, eleven states and Washington D.C. recognize same-sex couples' right to marry. (5) However, the law has not evolved as rapidly in other areas of family law that directly affect the construction of "non-traditional families." One such area is artificial insemination and the rights of sperm donors.
Motherhood among lesbian women and single, unmarried heterosexual women is increasing in the U.S. (6) This is in part due to scientific advancements in assisted reproductive technology (ART) and its growing use. (7) Many women wishing to conceive do so through artificial insemination using a sperm donor. (8) While many women choose to be inseminated with semen from an anonymous donor, others use semen from a known donor. (9) A woman's preference for a known donor may stem from her increased opportunity to observe the behavior and characteristics of a man she knows, access his medical history, and reduce the costs associated with the procedure. (10)
The law is well settled that anonymous donors relinquish their parental rights. As such, they cannot be sued for child support and cannot sue for parental rights. (11) However, the law regarding parentage and the rights of known donors is somewhat nebulous and often outdated. This note discusses the issues arising from these laws and the need for reform.
The conflict of determining parentage and the rights of known sperm donors occurs primarily in two scenarios. (12) In the first scenario, the recipient mother approaches a known donor and the parties agree that the known donor will relinquish all parental rights and responsibilities if a child is conceived. The recipient-mother agrees that she will not seek to hold the known donor responsible for financial or emotional support regarding the child. In this scenario, the legal system becomes involved when the recipient-mother reneges on this agreement and files a claim against the known donor for child support.
In the second scenario, a recipient-mother approaches a known donor and the parties agree that the known donor will have continued involvement in the child's life. This can range from full parental rights to visitation rights. However, after the child's birth, the recipient-mother terminates the relationship between the known donor and the child and contests the existence or enforceability of any agreement. It is important to note that in both the first and second scenario, the facts are often unclear as to whether there was an agreement between the parties or what the terms of any alleged agreement may be.
This note examines the issues involved in determining parental and donor rights when mothers-to-be enter into agreements with known sperm donors. First, in section II, I discuss the evolution of the Uniform Parentage Act of 1973 from its conception in 1973 to its most recent articulation in 2002. In section III, I briefly explain the intent-based approach to determining donor's rights. …