February 25, 2014
Sperm Donors, Ova Donors and Other Legal Strangers
Q: Are there places in Ohio where sperm and eggs can be donated?
A: Yes. Many Ohio medical centers offer assisted reproduction technologies (ARTs); some Ohio cities have more than one center. Sperm donation has been available since the late 1940s, but now women can also donate eggs (ova) to each other. Sometimes gamete (sperm or ova) donations are preserved through freezing and may be used ten or more years after donation.
Q: How do people use assisted reproduction technologies?
A: Due to delayed childbearing, a decline in stable marriages, an increase in venereal disease and greater understanding of genetic issues, increasing numbers of people (couples and singles) are considering various types of technologies to make reproduction possible. These technologies can allow a woman to become pregnant and bear a couple’s own genetic child. Or, a single person or a couple may use gamete (egg or sperm) donors or use the services of a gestational surrogate.
Q: How does Ohio law determine the child’s legal parent when more than two people make the child’s birth possible?
A: Generally, Ohio law considers the child’s genetic parents to be the “real” legal parents. Genetic parentage can be determined through medical testing before or at birth, so if a gestational surrogate becomes pregnant using the intended parents’ ova and sperm, parentage questions don’t usually arise.
If donor gametes are used to create a pregnancy in the intended mother under medical supervision, the physician uses a waiver and a contract to establish that the intended mother and her spouse/partner are obligated to serve as parents to the child. Ohio law recognizes ART procedures that occur under medical supervision.
If the child is not the genetic child of the parties and is not born of the intended mother, the courts may rely on written agreements between the parties to determine parentage. Ohio’s public policy does not prohibit such agreements.
Q: What legal risks are associated with assisted reproduction technologies?
A: Pregnancy and parenting carry high legal risks that increase with the number of people involved in the process. For example, recessive genes can play strange tricks. Sometimes you get twins or triplets you didn’t expect, or children may be born early or have birth defects. Generally, the law assumes that people who choose to use ARTs accept such risks when they decide to participate in the procedures. Aside from medical and legal implications, the participants, their families and the child(ren) must deal with relational and psychological issues. Some ART programs strongly recommend that people planning to use assisted reproduction technology receive psychological counseling.
Q: Why do we need laws, contracts and waivers when it would be a lot easier and cheaper to use home insemination?
A: The state has an interest in protecting the rights of children and making sure they are supported, as well as an interest in protecting donors and intended parents. To make sure the rights of all parties are respected, the state uses laws, contracts and waivers to provide a clear path for making parentage determinations, recording parties’ intentions, and allowing educational and civil authorities to deal with families in an orderly manner.
To protect donors from liability for child support and intended parents from custody claims by donors, the law requires procedures using ARTs to be medically supervised. Unsupervised procedures such as home inseminations (sometimes called “turkey baster” inseminations) carry particular risks. For example, it is possible to contract a sexually transmitted disease (STD) without direct sexual contact. A woman who contracts an STD from a donor through a home insemination creates additional complications that medical supervision might have prevented.
Q: Can a child conceived through the use of donor gametes find his or her “donor parents”?
A: Many donor contracts state that the donor’s identity will remain confidential, and medical professionals have long honored such commitments. However, with the advent of the Internet and DNA testing for genetic purposes, children can find their donor parents without help from medical personnel. Such searches can prove traumatic, however, and those making them should seek psychological counseling first. Donors may also be harmed by such searches. For example, a donor’s biological child may attempt to make claims on the donor’s estate. Because of this possibility, donors should protect themselves through careful personal and estate planning, and be sure to inform an estate planner of any previous gamete donations.
This “Law You Can Use” consumer legal information article was provided by the Ohio State Bar Association. This column was prepared by Columbus attorneys Susan Garner Eisenman, chair of Ohio’s Adoption Law Roundtable and ARTS and AAAA fellow and Robin B. Baird, who represents medical providers of ARTS. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.