Parenthood Bill for Known Donors in California

By Dov Fox

Naomi Cahn and June Carbone have a timely and thoughtful new op-ed in tomorrow’s L.A. Times that considers the evolving social and genetic dimensions of legal parenthood in the context of assisted reproduction. When many of the rules that govern sperm donation were enacted in the decade after Roe v. Wade, donors were presumed to be unknown to, and uninterested in knowing, the woman or resulting child. Today, however, donors are sometimes friends or lovers who want to assume a parenthood role at some point after the child is born, even if they didn’t think they would when they gave up their gametes to conceive him or her. How should the law approach such claims?

Cahn and Carbone criticize a California bill, SB 115, scheduled for hearings this week, that would allow a sperm donor to establish legal fatherhood if he “receives the child into his home and openly holds out the child as his natural child.” Supporters argue that the bill is “necessary in order to protect those children from losing a relationship with their fathers.” They argue that “only those men who establish a relationship with a child . . . would be permitted to seek parentage orders” and that “[t]he only way that these men establish such a relationship is with the consent of the biological mother.” So “[i]f the mother does not wish to be faced with a co-parent,” they point out, “[s]he can either use sperm obtained from an anonymous donor who has waived his rights, or she can refuse to permit a relationship from being established in the first place. It is not the child who should be deprived of a relationship because the child’s mother has changed her mind.”

Cahn and Carbone spell out the complexity in presuming legal parenthood at some unlimited time in the future, despite a parent’s intention not to be a parent before the child was conceived. A donor’s legal status as father shouldn’t, they contend, turn on whether he donates his sperm “the old-fashioned way” or with the assistance of technology. It “makes no sense,” they write, to distinguish between “biological progenitors who use a doctor and therefore are not parents under the law — even if they assume the role — and those who conceive without use of a doctor and are legal parents even if they have no relationship with the child.” More importantly, Cahn and Carbone argue, the bill “does nothing to encourage prospective parents to reach agreement before the child is born or to take children’s interests into account afterward. And it has no standard for determining how much involvement is necessary before a sperm donor can claim to be a parent.”

Judith Daar, in a persuasive critique of SB 115 last month here at Bill of Health, argued in a similar spirit that “the bill would jeopardize the reliance countless donor-conceived families have placed in the statutory assurance that a donor will not be considered a legal father.” Daar concluded, “The cure for the sentimental sperm donor is not a second bite at the apple. Rather, the law must do a better job at defining who is (and who is not) a true gamete donor at the time of donation so that the man’s status can take hold and persist.” ABC has the best news coverage of the controversy. For clear and concise analysis of the doctrine behind the California bill being argued this week, plus the provocative details of the case that inspired SB 115, check out Daar’s post and Cahn and Carbone’s op-ed.

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About Dov Fox

Dov Fox is Professor of Law and founding Faculty Director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law. He has published dozens of articles in leading journals of law and medical ethics, most recently “Reproductive Negligence” in 117 Columbia Law Review 149 (2017). His current book project, Birth Rights and Wrongs, is under contract with Oxford University Press. His work has been featured in CNN, ABC, NPR, BBC, Reuter’s, Bloomberg, the Boston Globe, and the Washington Post. Fox is a regular columnist for The Huffington Post and contributor to the Bill of Health blog. He also serves on the advisory boards of the American Constitution Society and Appellate Defenders, the non-profit law firm that administers all appointed counsel for indigent defendants in California's Fourth Appellate District. Prior to teaching, Fox served as a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. He has also worked at the law firm of Wachtell, Lipton, Rosen & Katz; the consulting firm of McKinsey & Company; and the Civil Appellate Staff at the U.S. Department of Justice. Fox was awarded a Rhodes Scholarship to attend Oxford University, where he earned his DPhil and then received a Soros Fellowship for New Americans to attend Yale Law School, where he served as projects editor for the Yale Law Journal and all three years was awarded the prize for best student paper in law and the sciences.