by Lori Andrews

Last week, the Supreme Court of Ireland stunned the reproductive technology community by holding that a sperm donor had legal rights as a father.  Four of the five justices wrote separate opinions as to why an agreement in advance not to be a donor did not prevent the sperm donor from asserting parental rights.

The case, J. McD v. PL and BM, involved a Lesbian couple who chose a friend as a sperm donor.  He signed an agreement stating that the female couple were the parents and he would have a role akin to that of a "favourite uncle."  When he sought a greater relationship, a lower court ruled against him.  But the Supreme Court of Ireland held that he could assert his legal rights. 

The reasoning used by the various justices was sweeping and could be applied to any situation of donor insemination, not just those involving nontraditional family structures.  Chief Justice Murray, for example, seemed to compare the sperm donor, McD., to a biological mother who gives her child up for adoption. Murray indicated that the sperm donor’s consent to relinquish parental rights before the child is born is suspect. Murray said that a sperm donor, "when faced after birth with the reality of a child… may, quite forseeably, experience strong natural feelings of parental empathy and identity which may overcome previous perceptions…arrived at in the more abstract situation before the child was even conceived….  [A] change of heart may be, as it was in this case, an event which raises issues as to whether in the interests of the child access or guardianship ought to be granted to the father."

In the United States, as in Ireland, the biological parents of a child cannot create a private contract which denies either parent's rights or responsibilities.  To get around the legal precedent that private agreements are non-binding, most American states have adopted sperm donor statutes, generally addressed to married couples, which hold that the consenting husband of the woman who is inseminated is the legal father.  There are several loopholes in the American jurisprudence, however.  A handful of states do not have statutes at all.  Some of the statutes only say the husband is the father and the donor is not, but others just say that the husband is the father without specifically cutting off the donor's parental rights.  Some terminate the donor’s parental rights only when a married woman is inseminated, not a single woman.  So, litigation in which a sperm donor asserts his rights is still a possibility in some states.  In the absence of specific statutory guidance that is directly on point, an American court, like the Irish one, would probably turn to the "best interest of the child" standard. 

And changing cultural norms might convince an American court that children have a right to learn the identity of their biological fathers, the sperm donors.  In the Irish decision, Justice Fennelly pointed out, "Scientific advances have made us aware that our unique genetic make-up derives from two independent but equally unique sources of genetic material. That is the aspect of the welfare of the child which arises."

So, ironically, even at the same time that reproductive technology is making it unnecessary for parents to have a biological connection to their child, genetic technology is telling children that biology matters.  And courts may be willing to grant a sperm donor rights, not just for the benefit of the donor, but for the benefit of the child.