Public Health Law Map - Beta 5 - Medical and Public Health Law Site

Choosing a sperm donor can be legally and medically risky. Even if the laws of the
state cut off parental rights for a sperm donor, the donor might make a legal
challenge if he knows who his biologic child is. These challenges can be very
disruptive for the child and the legal parents. Friendships and family relationships
are easily strained by conflicts that arise over custody and the raising of children.
Artificial insemination may also be medically risky if the sperm donor is not
rigorously screened for both genetic and communicable diseases. If the physician
procures the sperm, it will be difficult to avoid liability if the mother or the child is
harmed by a discoverable condition.
c) The Husband as Donor
If the husband is the source of the sperm, there are few legal problems. Custody and
paternity are not at issue because the biologic father and the legal father are the
same man. There may be problems if reasonable caution is not exercised in
screening the couple for underlying problems. If there is genetic disease that is
making it difficult for the woman to carry a pregnancy, this should be determined
before steps are taken that might improve the chance of carrying a defective fetus.
d) Related Donors
Using the sperm of a relative of an infertile man may seem to be a good solution;
the child will be genetically related to the legal father and will look like a member
of the family. There are, however, some serious drawbacks. If a genetic problem is
involved in the infertility, then the closer the relationship is to the father, the greater
is the chance that the donor is also affected. Even if state law severs parental rights
for a sperm donor, it will not sever the other relationship. If a brother is used as a
donor, he is still the child’s legal uncle. If the extended family is aware of the
arrangement, they may treat the child as though the biologic father were the legal
or social father. In case of divorce of the legal parents and/or infertility in the
marriage of the donor, there may be a battle for custody of the child. An uncle has
the right to go to court and challenge the fitness of a parent. If the uncle is also the
biologic father of the child, this relationship may strengthen his case before the
judge whatever the law on sperm donation may be.
The use of a relative of the mother carries the same legal risks plus the medical
risks of consanguinity. In most cases, the risks of recessive genetic disease are not
high, but using a maternal relative as donor carries a higher risk than using an
unrelated donor. In addition, if custody questions do arise, the mother may face
undue prejudice because of the cultural abhorrence of incest. Although artificial
insemination with her brother’s sperm is not the same as marrying her brother, the
distinction may be irrelevant to a judge or a jury in a custody case.
e) Unrelated Donors
Physicians should be cautious about participating in fertility treatments or
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