Chapter 7.D.2 Gamete Donation

Notes: Gamete Donation

1. Gamete Donation.

Ferguson v. McKiernan, 596 Pa. 78 (Pa. 2007)(known sperm donor who entered into oral agreement to provide sperm so long as he was not financially responsible for resulting child not liable for child support) and Paul Bailin, Ferguson v. McKiernan: the Problematic Concept of Technological Paternity, 36 J.L. Med. & Ethics 425 (2008). See also Elizabeth E. McDonald, Note: Sperm Donor or Thwarted Father? How Written Agreement Statutes are Changing the Way Courts Resolve Legal Parentage Issues in Assisted Reproduction Cases, 47 Fam. Ct. Rev. 340 (2009).

Do websites offering information about the race and ethnicity of gamete donors encourage a form of discrimination? Dov Fox, Note, Racial Classification in Assisted Reproduction, 118 Yale L. J. 1844 (2009)(process beyond legal regulation but represents bad policy).

How should courts and legislatures deal with the possibility of procreation using gametes derived from embryonic stem cells, that is, from parents who were never born? See Heidi Mertes & Guido Pennings, Embryonic Stem Cell-Derived Gametes and Genetic Parenthood: A Problematic Relationship, 17 Cambridge Quarterly of Healthcare Ethics 7 (2008). See also Debra J.H. Mathews, et al., Pluripotent Stem Cell-Derived Gametes: Truth and (Potential) Consequences, 5 Cell Stem Cell11 (2009).

3. Changes in the 2002 UPA.

The Uniform Parentage Act has been adopted by 12 states (updated October 2009), see http://www.lawsource.com/also/usa.cgi?usm#P.

6. Anonymity.

For a review of the problems associated with anonymous donation, as well as a review of issues arising from non-anonymous, or exposed, donations, see Naomi R. Cahn, Test Tube Families: Why the Fertility Market Needs Legal Regulation (2009); See Naomi Cahn, Accidental Incest: Drawing the Line- Or the Curtain?- For Reproductive Technology, 32 Harv. J.L. & Gender 59 (2009); Vanessa L. Pi, Regulating Sperm Donation: Why Requiring Exposed Donation is Not the Answer, 16 Duke J. Gender L. & Pol’y 379 (2009); Michelle Dennison, Revealing Your Source: The Case for Non-Anonymous Gamete Donation, 21 J.L. & Health 1 (2007). For more on donor databases, see Symposium on Gamete Databanks, 12 DePaul J. Health Care Law 195- 251.

4. Tort and Criminal Liability.

See Suriya E. P. Jayanti, Comment: Guarantors of Our Genes: Are Egg Donors Liable for Latent Genetic Disease?, 58 Am. U. L. Rev. 405 (2008); Sarah Terman, Note: Marketing Motherhood: Rights and Responsibilities of Egg Donors in ART Agreements, 3 NW J.L. & Soc. Pol'y 167 (2008). For more on the ethical issues, see Judith Daar and Robert G. Brzyski, Genetic Screening of Sperm and Oocyte Donors: Ethical and Policy Implications, 302 J.A.M.A. 1702 (2009).

5. Posthumous Reproduction.

In re Estate of Kievernagel, 166 Cal. App. 4th 1024 (Cal.App. 3 Dist., 2008) (intent of donor governs). See Charles P. Kindregan, Jr., Dead Dads: Thawing an Heir From the Freezer, 35 Wm. Mitchell L. Rev. 433 (2009), Browne C. Lewis, Dead Men Reproducing: Responding to the Existence of Afterdeath Children, 16 Geo. Mason L. Rev. 403 (2009); Kathryn Venturatos Lorio, Conceiving the Inconceivable: Legal Recognition of the Posthumously Conceived Child, 34 ACTEC J. 154 (2008). For a discussion on succession to children conceived through various ART’s, see Lee-ford Tritt, Sperms and Estate: An Unadulterated Functionally Based Approach to Parent-Child Property Succession, 62 SMU L. Rev. 367 (2009); Lawrence W. Waggoner, The UPC Addresses the Class-Gift and Intestacy Rights of Children of ART, 35 ACTEC J. 30 (2009).

For more on the benefits questions, see Vernoff v. Astrue, 568 F.3d 1102 (C.A.9 (Cal.), 2009)(no federal benefits, applying state law, where sperm obtained after father’s death without any evidence that he intended to posthumously reproduce and no evidence that child dependent on genetic father for support). The court rejected an equal protection challenge under rational basis review. Id.

Section 249.5 of California’s Probate Code provides:

For purposes of determining rights to property to be distributed upon the death of a decedent, a child of the decedent conceived and born after the death of the decedent shall be deemed to have been born in the lifetime of the decedent, and after the execution of all of the decedent's testamentary instruments, if the child or his or her representative proves by clear and convincing evidence that all of the following conditions are satisfied:

(a) The decedent, in writing, specifies that his or her genetic material shall be used for the posthumous conception of a child of the decedent, subject to the following:

(1) The specification shall be signed by the decedent and dated.

(2) The specification may be revoked or amended only by a writing, signed by the decedent and dated.

(3) A person is designated by the decedent to control the use of the genetic material.

(b) The person designated by the decedent to control the use of the genetic material has given written notice by certified mail, return receipt requested, that the decedent's genetic material was available for the purpose of posthumous conception. The notice shall have been given to a person who has the power to control the distribution of either the decedent's property or death benefits payable by reason of the decedent's death, within four months of the date of issuance of a certificate of the decedent's death or entry of a judgment determining the fact of the decedent's death, whichever event occurs first.

(c) The child was in utero using the decedent's genetic material and was in utero within two years of the date of issuance of a certificate of the decedent's death or entry of a judgment determining the fact of the decedent's death, whichever event occurs first. This subdivision does not apply to a child who shares all of his or her nuclear genes with the person donating the implanted nucleus as a result of the application of somatic nuclear transfer technology commonly known as human cloning.

See also, Khabbaz v. Comm'r, Soc. Sec. Admin, 155 N.H. 798 (N.H., 2007) (no benefits); Finley v. Astrue, 270 S.W.3d 849 (Ark., 2008) (denying benefits under Ark. Code Ann. § 28-9-210); Finlay v. Farm Cat, Inc., 103 Ark. App. 292 (Ark.App., 2008).

New Problem: The Presumed Father

The majority of states determine paternity based on an old common law presumption which deems that “a child born in a marriage is presumed the product of that union unless the husband was impotent, sterile or beyond ‘the four seas’ when his wife conceived.” Ruth Padawer, Who Knew I was Not the Father?, http://www.nytimes.com/2009/11/22/magazine/22Paternity-t.html.

How does DNA evidence affect this presumption? Consider the following situation. Mike discovers that his wife had an affair and, through an at-home DNA test, finds out he is not the genetic father of the little girl he has helped to raise since her birth. He and his wife divorce and he agrees to pay child support. After the divorce is final, Mike discovers that his former wife intends to marry the genetic father of the child he had considered to be his daughter. Mike seeks a court order declaring that he is no longer the father of his daughter and no longer obligated to pay child support. How should the court rule? See id.