When William Marotta donated his sperm to a lesbian couple, they performed an insemination absent the participation of a physician and agreed to absolve Marotta of parental responsibility.
However, this "new normal" arrangement is now unpersuasive to the State of Kansas, which has sued Marotta to recoup public assistance paid to the biological mother. The state also seeks a declaration that Marotta is obligated to support the child born of his sperm donation. The state asserts Marotta did not rely upon Kansas' safe harbor absolving sperm donors of responsibility when the insemination is performed by a doctor.
These do-it-yourselfers are perplexed that the state takes an interest in clarifying responsibility for providing for children: as if inseminationartificial or otherwiseis so much genetic flotsam utterly lacking consequence. But in fact there are numerous legal considerations, encompassing both criminal and civil ramifications.
Part of the decisional matrix is historical, drawing upon traditional notions of parental responsibility; however, part (including the Kansas insemination statute) specifically focuses on this Brave New World of insemination decoupled from traditional delivery.
A dozen years ago, an Atlanta reproductive clinic (Atlanta has world-class reproductive doctors and scientists) referred to me a "committed" though unmarried couple who were contemplating artificial insemination, along with their prospective sperm donor (a theoretical mathematician; no bargain basement gamete here). Established clinics recognize assisted reproductive technology (ART) as an interdisciplinary venture, and generally require a lawyer's opinion letter before proceeding (and customarily they insist upon psychological evaluations as well).
The couple wanted assurance that the sperm donor would have no potential paternal obligations, and I could not provide it. Had the couple been married and had they agreed in writing to the insemination, the child born would irrebuttably be their legitimate child and the donor would have no possible paternal obligation. O.C.G.A. § 19-7-21. The prospective mother ultimately reconsidered her position that marriage was an utterly useless and stultifying bourgeois convention and agreed to marry the elated prospective father, thereby removing the procreative conundrum.
Should an unmarried couple proceed in Georgia as the Kansas couple did with a DIY insemination, they would be committing a felony and risking five years' imprisonment. O.C.G.A. § 43-34-37(a). Furthermore, physicians may not delegate this less-than-artful task to a non-physician. Opinion of the Attorney General 82-87. Is Georgia myopically bucking the procreational Smart Set trend? Perhaps not.
Sperm is serious stuff (as are human eggs and embryos, but the decidedly low-tech method of harvesting sperm renders it much more subject to improvident utilization by the clueless). Consider the risk of transmittable/venereal disease: Hepatitis A, B and C, syphilis, gonorrhea, granuloma inguinale, herpes, lymphopathia venereum, chancroid and cytomegalovirus, not to mention HIV. Also consider the risk of inheritable or congenital conditions: Tay-Sachs disease, sickle-cell anemia, neurofibromatosis, Down syndrome, polycystic kidney disease, anencephaly, hemophilia, Marfan syndrome and spina bifida, among others.
The Food and Drug Administration now requires screening in certain situations under its Donor Eligibility Rule (21 CFR 1271.45 et. seq.). The public record is bereft of any non-culinary turkey-baster-wielder employing sperm quarantining (cryopreserving/freezing sperm for later use, in order to address the testing latency in detecting hepatitis and HIV).
In fact, Georgia's first artificial insemination surrogacy arose from a home insemination of the surrogate in New York, prior to that state's banning of the procreative relationship, resulting in the relocation of the intended parents and the then-pregnant surrogate; eliding over that circus atmosphere element in the Declaratory Judgment of Paternity represented the pivotal lawyering in the case.