A.W. and M.S. had been friends and, at one point roommates, but never intimately involved. A.W., a woman, is a lesbian who decided she wanted to have a child. She approached her friend M.S., a man, and asked whether he would be willing to provide sperm for her to use for artificial insemination. He wanted children of his own, but did not believe he would ever marry, so he said yes. She provided the sterile cups and syringes, and he provided the sperm. She inseminated herself and conceived a child.
Is he a donor or a dad? In our world of increasingly complex family formation—reproductive technology, nonmarital childbearing, and openly gay parents—courts are often asked to define the status of a particular adult with respect to a particular child. Surrogate carrier or mother? Lesbian co-parent or legal stranger? Biological father or cuckolded husband? There are statutory rules and judicial doctrines governing the line drawing that must occur in all of these situations, but they vary across state lines, sometimes tremendously. The rules vary not only in substance—e.g., are surrogacy contracts legally enforceable or not—but also by whether they are dictated by the legislature, by courts, or in some combination; come in the form of bright-line rules or multi-factored standards; rely on objective determinants or subjective states of mind; and favor formal or functional tests.
In this recent Texas appellate case, Interest of P.S., we see one state’s fairly typical approach to the “donor versus dad” question, with an outcome that diverged from the mother’s expectations prior to conception. And in that divergence is one of the recurring problems in parentage law—individuals form families with the expectation that their intentions regarding parent-child ties will be respected, an expectation that is often not honored.
The Origin of American Sperm Donor Laws
The earliest sperm donor statutes in the United States date to the 1970s, when the National Conference of Commissioners on Uniform State Laws (NCCUSL) promulgated the its first parentage act. The Uniform Parentage Act (UPA) was adopted primarily to deal with the chaos of unwed father law in the wake of several Supreme Court decisions holding that it was unconstitutional for states to discriminate against illegitimate children or to categorically deny legal parent status to unwed fathers. But the UPA swept more broadly, including provisions on surrogacy and sperm donation as well. The central shift ushered in by the UPA was the untethering of parentage from marriage, i.e. men could be legal fathers without being married to a child’s mother.
The UPA both reflected and reinforced an emerging tolerance for new family forms. But, as the drafters recognized, new families bring new questions, and parentage—who is a legal parent—is chief among them. The resulting system was one that continued to grant mothers legal parent status solely as a function of giving birth, while legal fatherhood was determined by reference to a “network of presumptions which cover cases in which proof of external circumstances (in the simplest case, marriage between the mother and a man) indicate a particular man to be the probable father.”
The UPA also included a separate provision governing parentage in situations of artificial insemination. Contemplating only artificial insemination by married women, one section provided that “the donor of semen provided to a licensed physician for use in artificial insemination of a married woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived.” This had the effect of severing the biological tie between the donor and the child. Another section provided the basis for a substitute father: the mother’s husband. If he consented in writing to the insemination, he could be treated as the legal father. In this one, narrow context, intent substituted for biology as the basis for tying a man to a child.
This version of the UPA did not cover any scenario in which an insemination would leave a child fatherless. Thus, if a sperm “donor” provided sperm to an unmarried woman, he could be subjected to the obligations of fatherhood (or have its advantages) based on the “network of presumptions” applied to unwed fathers. He was not a “donor” in any meaningful legal sense. The same could be true if a man provided semen directly to a woman for self-insemination, rather to a licensed physician. The non-paternity rule described above only applied if the sperm was given to a physician. Both the donor and the mother bore risk in these situations—he that unwanted child support obligations would be imposed; she that her exclusive parental rights would be diluted. (Anonymous donors were of course protected by their anonymity, regardless of whether the law would theoretically treat them as donors or fathers.)
Eighteen states adopted the 1973 UPA in full or in substantial part. A handful of other states adopted parentage statutes of their own that were similar in at least some respects. California, for example, omitted the word “married” without explanation, a simple wording change that in fact drastically changed the scope of the non-paternity provision—and its consequences.
The Evolution of Sperm Donor Laws
The rules in the 1973 UPA became outdated relatively quickly as the prevalence, use, and nature of assisted reproduction changed dramatically in the decade that followed its adoption. Assisted reproduction became more common in part because infertility rates rose, but also because single women and lesbian couples sought out donor sperm to conceive children. It became more difficult with these social changes to draw the line between “donor” and “potential father.” The decades that followed would see lots of legislative tinkering in an attempt to get the line just right.
In 1988, NCCUSL adopted a separate act to deal with the increasingly complicated questions arising from the use of reproductive technology. This act, the Uniform Status of Children of Assisted Conception Act (USCACA), expressly contemplated that sperm would sometime be donated to unmarried women and sometimes without going through a licensed physician. And the non-paternity rule could apply to donors in both situations. The class of donors got bigger, while the class of fathers got smaller.
In 2000, USCACA was withdrawn, however, and its provisions were folded into a new version of the UPA. The non-paternity rule could be applied to any sperm donor, regardless of whether the woman was married or unmarried and regardless of whether the sperm was provided to a physician or directly to the woman. The new UPA was bolder in its embrace of the new family. In a comment to the donor provision, the drafters wrote: “If a child is conceived as the result of assisted reproduction, this section clarifies that a donor (whether or sperm or egg) is not a parent of the resulting child. The donor can neither sue to establish parental rights, nor be sued and required to support the resulting child. In sum, donors are eliminated from the parental equation.” The rule was written to provide “certainty of nonparentage for prospective donors.” And the drafters did this despite their acknowledgement that the use of sperm donation by unmarried women was growing and thus there might be a sizable number of fatherless children under the new rules.
In 2002, the UPA was amended again, with one important change to the sperm donor provisions. For the first time, the rules provided for the possibility that an unmarried male partner could be deemed the legal father of a child conceived by his female partner with donor sperm. The old rules spoke only of husbands as substitute fathers, but now an unmarried partner could be recognized as a legal father through the combination of intent to parent and consent to the insemination.
Where Are We Now? And What Happened in Interest of P.S.
Across the nation, states still vary significantly in their treatment of parentage in the context of sperm donation. Three-quarters of the states have a statute that applies a rule of non-paternity in at least some situations. Some are still based on the original 1973 UPA, some have been amended to reflect the 2000 or 2002 changes, and some are unique. For example, several include an exception to the non-paternity rule when the mother and the donor enter into a written agreement prior to conception providing that he will his parental status will not be severed by the usual rule. One commonality: None of these statutes apply to conceptions achieved through sexual intercourse.
Whether a particular man will be treated as a donor or as a potential father is a function both factual and legal variables. Factually, his status may turn on whether he is anonymous or non-anonymous, the sperm was given to a licensed physician or to the woman directly, the pregnancy was achieved using assisted reproductive technology, he and the woman had a pre-conception agreement with respect to parental status, and, in some situations, the development of a parent-child relationship after birth. Legally, his status will turn on whether the statute applies to all women or only married ones, whether it applies to self-inseminations or only those handled by medical professionals, and whether it provides an opt-out provision for unmarried couples who intend to share parental rights but require assisted reproduction because of infertility or a related medical problem. Most state sperm donor laws do not differentiate between known and unknown sperm donors on their face—the non-paternity rule applies equally to both classes of men depending on whether they are classified as a donor or a potential father.
Recall that in the Interest of P.S. case, the mother and donor were friends, and that he provided the semen directly to her in a cup. This case was brought by the state attorney general’s office, on behalf of the donor/dad, who wanted to establish paternity. A.W., the child’s mother, fought to maintain her exclusive parental status. But the law was not in her favor.
Texas is one of the states that has a sperm donor rule (unlike New York, which still, tsk tsk, in 2016, does not have one), but contains some features from the original 1973 UPA. Texas Family Code 160.702 provides that a “donor” is not a parent of a child conceived by means of assisted reproduction. And a separate provision defines “donor” as “an individual who provides sperm to a licensed physician to be used for assisted reproduction.” Texas thus applies the non-paternity rule only when the donation is made through a licensed physician and not directly to the woman. This was an open-and-shut case: the evidence at trial “conclusively established” that the sperm did not go through a physician. The rest of the evidence at trial was irrelevant. It did not matter whether, as she pointed out, she had rescinded the acknowledgment of paternity he had signed, or whether, as he argued, that they had verbally agreed that he would be involved in the child’s life. The certainty of parentage sought by the UPA drafters is in full focus in a case like this. M.S. was a dad, not a donor, because he provided the sperm directly to A.W. rather than to a physician. He was not subjected to the non-paternity rule. Instead, he was just another unwed father—who could have paternity established on the basis of his genetic tie to the child—and could seek rights to custody or visitation based on the best interests of the child.
One could argue that the Texas legislature should revisit its parentage laws to see whether the choices it made decades ago are still wise. But that is not relevant to the trial or appellate court, both of which made the right determination in this case. The cautionary tale, then, is for donors, mothers, and husbands everywhere: Bring a lawyer to every assisted conception.