Medical intervention should not define legal parenthood

The Court of Appeals of Virginia recently awarded a man custody and visitation rights after he changed his mind about the relationship he wanted with his genetic child, following a private sperm donation arrangement that went sour (see BioNews 799). The genetic father, Robert Boardwine, had provided sperm for self-insemination to his friend, Joyce Bruce, with the understanding that Bruce would be the sole parent of the child. However, following a dispute with Bruce, Boardwine changed his mind and petitioned the court to recognise his parental rights.

In its decision, the court found that a Virginia statute excludes gamete donors from legal parenthood only when insemination occurs with the aid of medical technology. Since Bruce used a turkey baster, which the court found does not satisfy the definition of 'medical technology', Boardwine could not be treated like a gamete donor. Reaffirming the decision of the lower court, the judge therefore granted Boardwine access to his biological child.

The law in Virginia that gave rise to this ruling is an example of a legislative strategy commonly used to distinguish mere gamete providers from individuals who become legal parents by virtue of their genetic relationship to a child (e.g. men in one-night-stand cases). Many jurisdictions, including the UK, have special provisions excluding gamete providers from the possibility of legal parenthood, but only if conception occurs within a defined medical context. In fact, in 2012, a UK sperm donor was found responsible for child support after providing sperm to two lesbian couples outside the auspices of a licensed clinic (see BioNews 680).

One purpose of these kinds of laws might be to set a high standard for a pregnancy to be legally considered the result of sperm donation so that men cannot escape their child maintenance obligations by simply claiming to be sperm donors. Another purpose might be to ensure that regulations governing the transfer and use of gametes are followed, which is easier when licensed clinics are used. However, even if we accept both these as important aims, there are various reasons to question 'medical involvement' as the appropriate feature for distinguishing gamete donation from cases where biological ties play a prominent role in determining legal parenthood.

The most pressing reason is that, since legal parenthood is a morally weighty designation that has an enormous impact on the wellbeing of many people, it should track the morally relevant facts as much as possible. However, the type of equipment used and the involvement of licensed medical professionals seem irrelevant to the moral facts that determine which individuals ought to have recognised rights and responsibilities for the children they help create.

This is likely why the Virginia case is so disconcerting. It is troubling to think that if Bruce would have used a specifically designed insemination kit (which presumably would have counted as 'medical technology') the court could have upheld the sperm donation agreement, but because Bruce used a kitchen utensil instead, the intention behind the provision of gametes was rendered legally irrelevant. Regardless of whether someone thinks that it is genetics or intentions that matter for parenthood, it seems highly implausible that they would think the kind of equipment used makes any moral difference at all.

Another reason is that coercing individuals to seek medical assistance when using donated gametes creates harms that are hard to justify. For one, in places where the costs of fertility treatment are not covered by a public medical system, the requirement to use approved medical technologies adds unnecessary costs; it is not as though self-insemination is a risky procedure that ought to be left to trained medical professionals.

Additionally, these kinds of regulations cause expressive harms. Treatment using licensed practitioners or equipment is normally only required when a procedure poses a certain level of health risk. Mandating that individuals wishing to create families using donated gametes seek medical intervention suggests that there is something particularly medically concerning about gestating and raising a child conceived using donated gametes. Not only might this stigmatise individuals making use of donated gametes, but it also disguises an important legal and ethical question - how to define legal parenthood - as a medical one.

What the ruling in Virginia shows is that much work needs to be done in order to bring legal approaches to parenthood in line with relevant ethical facts. Certainly, this is not an easy task. We often have mixed intuitions about the importance of biological ties, and there is much disagreement about how to weigh the different factors that are morally relevant to parenthood. Given that scientific advances in assisted reproduction will likely only further complicate matters, there is a pressing need to work out an ethical framework for resolving questions about legal parenthood.