Whose sperm is it anyway?

A woman whose husband became a sperm donor without her knowledge is seeking to change the law (reported in BioNews 671). Her claim is that a husband's sperm constitutes a 'marital asset', over which a wife should have some legally enforcable rights.

Currently, there is no legal requirement for a spouse to consent to her partner's sperm donation. But perhaps there should be? After all, marriage is usually understood to entail a degree of shared decision-making. And since begetting children - with one's spouse - is traditionally a primary reason for tying the knot, can it really be compatible with marital mores for husbands to conceive children with other people?

Expectations of marriage have evolved over the centuries. And the legal rights and obligations associated with marriage have changed accordingly. Spouses may no longer be certain just what is entailed by the marital bond. If you marry someone, have you automatically agreed to allow them unlimited access to your bank account? Have you by default committed yourself to having sex with them on demand?

For English women, the answer to these questions used to be straightforwardly yes. Once married, a woman's property became that of her husband. After several decades of legal wrangling, the Married Women's Property Act of 1882 ended this, revolutionising the social and financial position of women and paving the way for female suffrage. The whole purpose of this Act was to ensure that merely being married does not automatically transform an individual's possessions into 'marital assets'.

Still more strikingly, in the past, a woman's body was regarded as the property of her husband. Accordingly, there was no legal recognition of the crime of rape if the victim was the perpetrator's wife. In consenting to marriage, a woman forfeited any right to object to her husband's sexual demands. In essence, her body and her reproductive functions were marital assets — and therefore under the control of her husband. The law relating to this was changed only in 1991 in the UK, to allow for prosecution of men who rape their wives.

Women have reason to feel glad that the law has changed on these issues. Marriage no longer constitutes legal ownership, whether of the spouse's body, or their property. A wife may feel that her husband should not donate sperm without her agreement. And her concern may be morally justifiable, if not legally so. But the language of ownership and assets in this context invokes an ugly history. The law is at best a blunt tool for enforcing the delicate nuances in personal relationships. This being so, there are a number of crucial reasons for being very cautious about arguing for legal restrictions on one's spouse's freedom.

The first consideration is that morality and law are not identical. There are some things which many — or even all — people would agree are immoral in the context of marriage: adultery, for example. Should the law insist that the wife's consent is obtained before a husband has sex with another woman? If the wife's consent is not obtained, should adultery be prosecuted as a crime, rather than simply frowned upon as a vice?

The freedom - within certain limits - to behave immorally is protected in our society and this extends to marriage. One reason for this is that people have different ideas about what constitutes immoral behaviour. Perhaps some wives would think it perfectly reasonable for their husbands to donate sperm. Within the context of different relationships, different sorts of behaviour are acceptable. Trying to enforce a uniform standard through legal proscriptions would be both dangerous and foolish.

Another reason for being reluctant to apply legal restrictions over a husband's activities is the necessity for even-handedness in the law. A wife who seeks to prevent her husband from disposing of his tissue without her consent may want to think about whether she would wish her husband to exercise similar rights over her. If a wife must give consent before her husband can donate sperm, must a husband give consent before his wife gets pregnant? Or cuts her hair? Or donates blood?

Of course spouses who respect and care for one another will hesitate before taking action that will distress their loved one. A man who donates sperm with no consideration for his wife's feelings may be a bad husband. But equally, perhaps, a woman who seeks legal control or ownership of her husband's tissue is a bad wife. What should the law do when confronted with bad husbands and wives? The answer, in my view, is 'nothing'.

Relationships are the moral responsibility of those who engage in them. The changes that have been fought for, and attained, in marriage, entail a greater degree of freedom and flexibility than in the past. People choose their spouses, and negotiate the terms of their relationships according to their values and beliefs. Sometimes they choose badly, or their negotiations founder. In such cases, they have another option that was not available to married couples in the past: divorce.