FDA Regulation and Parental Rights in Artificial Insemination

The Just Families blog of New York Law School's Diane Abbey Law Center for Children and Families posted the article at the link that follows about a trend of couples sidestepping fertility clinics to find sperm donors: Online Sperm Donation

I posted the following comment there based on the first few legal thoughts* I had reading the article:

Would the FDA still think it had a right to regulate the transaction if the donor made his donation directly without the intervention of the husband? What if it were a loveless marriage and the husband was the donor the only intention being to make the wife pregnant, does that still invoke the regulatory powers of the FDA?

Regarding the presumption of legitimacy - my research suggests that those laws have nothing to do with the use or not of a physician but predate artificial insemination and create a rebuttable presumption that the husband is the father of a child born during (or in the case of Massachusetts within a certain time frame before or after) a marriage. It is to protect the child from being fatherless or being declared not the child of the mother's husband unless there is evidence presented that bursts the presumption and it is in the child's best interests to declare the genetic father to also be the legal father.

I know some state laws and AID contracts limit the right of the sperm donor to assert his parentage, but for the best interests of the child, it would seem that limiting the presumption to physician-assisted sperm donation would be counter-productive.

More thoughts:

What about this kind of transaction takes it out of the Griswold v. Connecticut or Belotti v. Baird privacy realm that permits the FDA to be involved?

Forgetting about the FDA regulation issue, what are the pure Family Law / Parental Rights issues involved? Do state laws adequately deal with the issues involved in sperm donation? Can the parties to the transaction write an agreement that would be sufficient to foreclose the donor from having any rights or obligations regarding the child? Would it be legitimate for the parties to deal with each other anonymously with fictitious names and proxy email addresses?

Has the law of parenting fallen too far behind technology to adequately address these issues? Should the law ignore technological advances until it catches up? Are there issues of morality aside from the legal issues? (That is, is there something malum im se, wrong in itself, rather than malum prohibitum, wrong because it is illegal, that needs to be addressed here?)

* I had other initial thoughts based on the title of the article that were of a practical rather than legal nature that I didn't post on the Just Families blog mainly around the question, "How do you get the sperm into the Internet for online donation?" When I read the article, I understood that it was the offer of the donation service only that are made online and the couples travel to where the donor is to consummate the transactions.

In re: Adoption of Sebastian

Fascinating case of first impression from Manhattan Surrogates Court -- In re: Adoption of Sebastian. Mom whose ovum was implanted in her spouse's uteris after in vitro fertilization is permitted to adopt her child to ensure full, safe recognition of her legal relationship with the child.

The court noted that because of the international nature of the couple, because of the state's out-dated paternity laws and because of the federal "Defense of Marriage Act" (so-called), though there were less expensive, quicker ways to protect the relationship to which genetic mom was entitled with her child, adoption was the only way to assure full and complete recognition.

Read full opinion here.

Whom is this law supposed to benefit?

The Associated Press reported on September 26, 2008, that on September 24th in Nebraska, 11 children (9 of them siblings) were abandoned at two different hospitals under the state's so-called "Safe Haven" law. (See the full Boston Globe story here.)

According to the article,

Todd Landry, director of Health and Human Services' division of Children and Family Services, said that in nearly every case, the parents who left their children felt overwhelmed and had decided they didn't want to be parents anymore.

In my opinion it is disastrous to let children be dumped like so much not-worthy-of-my-time-to-repair-but-too-good-for-the-trash "Free-cycle" material, especially when states can achieve the same goal by just making it clear that they do not intend to prosecute troubled parents who seek help when they are overwhelmed with child-rearing.

Massachusetts has a "Baby Safe Haven Law" but it only applies to babies 7 days old or less. It is still problematic, though, because it permits the voluntarily-abandoning-parent to do so without providing any information about him/herself or the child. There is then no ability to notify the other parent nor any other family member who might be interested. The babies so abandoned are turned into complete foundlings without any birth-family history, medical history or sense of place in the world that can be difficult to overcome even in the most caring of adoptive homes.

As a society we should be able to help struggling parents and their children without the need to say "Children Wanted - No Question Asked."

Legal Ramifications of Teen Sexuality

A man in Florida owes more than $10,000 in back child support payments in a paternity case involving a 15-year-old girl who he allegedly fathered when he was 16; but who, according to DNA results and the girl's mother, is not his daughter.

He still has to pay.

The state of Florida is continuing to push him to pay $305 a month to support the girl, as well as the more than $10,000 already owed. He spent a night in jail because of his delinquent payments. Why? Because he missed the deadline to legally contest paternity. The paperwork didn't reach him until after the deadline had passed.

To read the rest of the article, click here.

If you want to receive timely notice when someone files against you for support be sure to stay in touch with all your old girlfriends (unless of course doing so would violate a request or court order), submit change of address forms to the post office when you move and consider filing with the putative father registry whenever there is a chance that you may have conceived a child.

Also consider the case of Genarlow Wilson, a Georgia teen who has spent nearly 29 months in prison on a ten year sentence which a judge and numerous commentators have called unjust. Wilson had consensual oral sex with a 15 year old girl at a party when he was 17.

The Georgia statutory rape law was amended to exempt "Romeo and Juliette" cases but only for intercourse, leaving the prosecutor free to press the felony charge against Wilson. To follow his case, click here.

Massachusetts, however, has no such exemption. See Mass. General Laws chapter 265, section 23.

You can be prosecuted for consensual sex with your under-aged partner. You can be forced to pay support for children you did not consent to conceive and even children who are not yours.

Bottom line: Sexuality is complicated and has significant legal ramifications.