Hostname: page-component-586b7cd67f-gb8f7 Total loading time: 0 Render date: 2024-11-23T22:30:11.021Z Has data issue: false hasContentIssue false
  • English
  • Français

My Gametes, My Right? The Politics of Involving Donors' Partners in Egg and Sperm Donation

Published online by Cambridge University Press:  01 January 2021

Katherine M. Johnson
Get access Rights & Permissions [Opens in a new window]

Abstract

Gamete donation offers a unique opportunity to compare men and women's relationships to reproductive decision-making, unlike other reproductive processes, which typically involve women's bodies much more asymmetrically. I address medical and reproductive decision-making by examining how a gamete donor's partner may be involved in the donation process. Some countries explicitly involve a donor's partner by legally requiring spousal consent for donation, but this is not the case for the U.S. In the absence of any formal regulation, what are the expectations for involving a donor's partner? Through a content analysis of materials from donation programs across the U.S., I examine how donation programs configure the partner's role. Overall, I find that there are quite different expectations for partner involvement in egg versus sperm donation. Such differences, I argue, both stem from and reinforce existing issues navigating boundaries between intimate relationships and women's medical and reproductive autonomy.

Type
Independent Articles
Information
Journal of Law, Medicine & Ethics , Volume 45 , Issue 4: Stigma & Health , Winter 2017 , pp. 621 - 633
Copyright
Copyright © American Society of Law, Medicine and Ethics 2017

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Englert, Y. S., Emiliani, P., Revelard, F., Devreker, C., Laruelle, C., and Delbaere, A., “Sperm and Oocyte Donation: Gamete Donation Issues,” International Congress Series 1266 (2004): 303-310.CrossRefGoogle Scholar
Almeling, R., Sex Cells: The Medical Market for Eggs and Sperm (Berkeley: UC Press, 2011); Haimes, E., “Issues of Gender in Gamete Donation,” Social Science & Medicine 36, no. 1 (1993): 85-93; Spilker, K. and Lie, M., “Gender and Bioethics Intertwined: Egg Donation within the Context of Equal Opportunities,” European Journal of Women’s Studies 14, no. 4 (2007): 327–340; Hertz, R., Nelson, M. K., and Kramer, W., “Gendering Gametes: The Unequal Contributions of Sperm and Egg Donors,” Social Science & Medicine 147 (2015): 10-19.Google Scholar
Pennings, G., “Partner Consent for Sperm Donation,” Human Reproduction 11, no. 5 (1996): 1132-1137; Robertson, J. A., “Technology and Motherhood: Legal and Ethical Issues in Human Egg Donation,” Case Western Law Review 39, no. 1 (1989): 1–38.CrossRefGoogle Scholar
Spar, D., The Baby Business: How Money, Science, and Politics Drive the Commerce of Conception (Boston: Harvard Business Press, 2006); Cahn, N. R., Test Tube Families: Why the Fertility Market Needs Legal Regulation (New York: NYU Press, 2009).Google Scholar
Annas, G. J., “Fathers Anonymous: Beyond the Best Interests of the Sperm Donor,” Family Law Quarterly 14 (1980): 1-13; Gurmankin, A. D., Caplan, A. L., and Braverman, A. M., “Screening Practices and Beliefs of Assisted Reproductive Technology Programs,” Fertility & Sterility 83, no. 1 (2005): 61–67.Google Scholar
Food and Drug Administration (FDA), “Guidance for Industry: Eligibility Determination for Donors of Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps),” U.S. Department of Health and Human Services (2007), available at <http://www.fda.gov/cber/guidelines.htm> [hereinafter cited as FDA] (last visited November 22, 2017).+[hereinafter+cited+as+FDA]+(last+visited+November+22,+2017).>Google Scholar
Bartholomew, G. W., “Legal Implications of Artificial Insemination,” The Modern Law Review 21, no. 3 (1958): 236-258; Seymour, F. I. and Koerner, A., “Medicolegal Aspect of Artificial Insemination,” JAMA 107, no. 19 (1936): 1531-1534.Google Scholar
See Seymour, and Koerner, , supra note 7.Google Scholar
See Seymour, and Koerner, , supra note 7, at 1533.Google Scholar
See Bartholomew, supra note 7; Bernstein, G., “The Socio-legal Acceptance of New Technologies: A Close Look at Artificial Insemination,” Washington Law Review 77 (2002): 1035-1120.Google Scholar
See Annas, , supra note 5, at 9.Google Scholar
See Annas, , supra note 5, at 9-10.Google Scholar
See Annas, , supra note 5, at 10; notably, sixteen years later, the decision in Planned Parenthood of Southeastern Pennsylvania v. Casey [505 US 833 (1992)] further found that even requiring women to notify spouses about their intent to have an abortion was considered an “undue burden” and therefore not upheld. As such there is legal precedent that certain pro-creative decisions are protected from spousal interference.Google Scholar
See Pennings, supra note 3.Google Scholar
See Pennings, supra note 3, at 1136.Google Scholar
Human Rights Campaign, “Donor Insemination: Laws,” available at <http://www.hrc.org/issues/parenting/donor_insemination/donor_insemination_laws.asp> (last visited November 22, 2017).+(last+visited+November+22,+2017).>Google Scholar
Singer, J., “Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption,” Maryland Law Review 65 (2006): 245-270; Uniform Law Commission, “Parentage Act (1973),” available at <http://www.uniformlaws.org/ActSummary.aspx?title=Parentage%20Act> (last visited November 22, 2017); Uniform Law Commission, “Parentage Act (2002),” available at <http://www.uniformlaws.org/Act.aspx?title=Parentage%20Act> (last visited November 22, 2017).Google Scholar
See Robertson, , supra note 3, at 17.Google Scholar
It is worth commenting here on the possibility that the egg donor’s husband might be declared the father of the donor-conceived child via the marital presumption of paternity. This is a slim possibility that would require at minimum the following: 1) the egg donor would have to be found the legal mother, thereby extending the possibility of the marital presumption of paternity to her husband, given that he was not biologically related to the child, and 2) the sperm provider (whether donor or the recipient’s spouse/partner) would need to be declared a non-parent in order to allow another man to be declared the legal father. Case law precedent suggests that it is highly unlikely an egg donor will attain legal maternity, thereby closing off the possibility of her spouse’s paternity. In two separate cases involving egg donation (In re C.K.G., [173 S.W. 3d 714 (Tn 2005)]; McDonald v. McDonald, [196 A.D. 2d 7, 608 N.Y.S.2d 477 (1994)]) two different couples dissolved their relationships and the legal fathers attempted to declare that their ex-partners were not the legal mothers of the children in question. Both decisions found that the gestational mothers who intended to parent were the legal mothers. In another case, a woman attempted to reduce her former partner’s parental status to egg donor. In KM v. EG, [117 P. 3d 673 - Cal: Supreme Court 2005], a lesbian couple dissolved their relationship and E.G. attempted to declare that K.M. was an egg donor, not a parent to their 5-year old twins that were born using K.M.’s eggs and E.G. gestating. Because both women had a biological tie to the children the Court examined the intentions of the parties and the de facto relationships among all involved and found that K.M. was a legal parent of the twins. This represents a case where a purported egg donor did achieve parental status, but only because they were not truly a donor to begin with—their ex-partner was simply trying to deny this status.Google Scholar
See Robertson, , supra note 3, at 19-20.Google Scholar
See Robertson, , supra note 3, at 19.Google Scholar
Schenker, J. G., “Ovum Donation: Ethical and Legal Aspects,” Journal of Assisted Reproduction and Genetics 9, no. 5 (1992): 411-418, at 413.Google Scholar
See Schenker, , supra note 22, at 413.Google Scholar
Stoddard, J. C. and Fox, J., “Egg Donation Consent Forms,” in Seibel, M. M. and Crockin, S. L., eds., Family Building through Egg and Sperm Donation: Medical, Legal, and Ethical Issues (Sudbury: Jones and Bartlett Publishers, 1996): at 158-216.Google Scholar
See Stoddard and Fox, supra note 24, at 169.Google Scholar
Creative Love Egg Donor Agency, “Egg Donation Laws,” available at <http://www.cledp.com/for-recipients/egg-donor-program/egg-donation-laws.Html.> (last visited November 22, 2017); Uniform Law Commission, “Legislative Fact Sheet - Parentage Act,” available at <http://www.uniformlaws.org/LegislativeFactSheet.aspx?title=Parentage%20Act> (last visited November 22, 2017).+(last+visited+November+22,+2017);+Uniform+Law+Commission,+“Legislative+Fact+Sheet+-+Parentage+Act,”+available+at++(last+visited+November+22,+2017).>Google Scholar
Braverman, A. M. and Ovum Donor Task Force of the Psychological Special Interests Group of the American Fertility Society, “Survey Results on the Current Practice of Ovum Donation,” Fertility & Sterility 59, no. 6 (1993): 1216-1220.CrossRefGoogle Scholar
Gorrill, M. J., Johnson, L. K., Patton, P. E., and Burry, K. A., “Oocyte Donor Screening: The Selection Process and Cost Analysis,” Fertility & Sterility 75, no. 2 (2001): 400-404; Lindheim, S. R., Frumovitz, M., and Sauer, M. V., “Recruitment and Screening Policies and Procedures Used to Establish a Paid Donor Oocyte Registry,” Human Reproduction 13, no. 7 (1998): 2020–2024.CrossRefGoogle Scholar
American Society for Reproductive Medicine, “Guidelines for Oocyte Donation,” Fertility & Sterility 70, no. 4 (1998): S5-6 [hereinafter cited as ASRM]; ASRM, “Guidelines for Oocyte Donation,” Fertility & Sterility 77, no. 6 (2002): S6-8; ASRM, “2008 Guidelines for Gamete and Embryo Donation: A Practice Committee Report,” Fertility & Sterility 90 (2008): S30-44.CrossRefGoogle Scholar
The Ethics Committee of the American Society for Reproductive Medicine, “Interests, Obligations, and Rights of the Donor in Gamete Donation,” Fertility & Sterility 91, no. 1 (2009): 22-27, at 24 [hereinafter cited as The Ethics Committee].CrossRefGoogle Scholar
See The Ethics Committee, supra note 30, at 25.Google Scholar
Shover, L. R., Rothman, S. A., and Collins, R. L., “The Personality and Motivation of Semen Donors: A Comparison with Oocyte Donors,” Human Reproduction 7 (1992): 575–579.CrossRefGoogle Scholar
Kan, A.K.S., Abdalla, H. I., Ogunyemi, B. O., Korea, L., and Latarche, E., “A Survey of Anonymous Oocyte Donors: Demographics,” Human Reproduction 13, no.10 (1998): 2762-2766; Sachs, P., Covington, S. N., Toll, C., Richter, K. S., Purcell, M., and Chang, F. E., “Demographic Variables Related to Successful Anonymous Oocyte Donor Recruitment,” Fertility & Sterility 93, no. 1 (2010): 311–13.CrossRefGoogle Scholar
Holster, K., “Making Connections: Egg Donation, the Internet, and the New Reproductive Technology Marketplace,” Advances in Medical Sociology 10 (2008): 53-73; Levine, A. D., “Self-Regulation, Compensation, and the Ethical Recruitment of Oocyte Donors,” Hastings Center Report 40, no. 2 (2010): 25–36.CrossRefGoogle Scholar
Beauchamp, T. L. and Childress, J. F., Principles of Biomedical Ethics, 4th edition (New York, NY: Oxford University Press, 1994): at 121.Google Scholar
Beauchamp and Childress, supra note 35.Google Scholar
Meisel, A. and Kuczewski, M., “Legal and Ethical Myths about Informed Consent,” Archives of Internal Medicine 156 (1996): 2521-2526.CrossRefGoogle Scholar
Ho, A., “Relational Autonomy or Undue Pressure? Family’s Role in Medical Decision-Making,” Scandinavian Journal of Caring Science 22 (2008): 128-135; Kuczewski, M. G., “Reconceiving the Family: The Process of Consent in Medical Decision-Making,” The Hastings Center Report 26, no. 2 (1996): 30–37.CrossRefGoogle Scholar
Annas, G. J., “HIPAA Regulations—A New Era of Medical-Record Privacy?” The New England Journal of Medicine 348, no. 15 (2003): 1486-1490, at 1486.CrossRefGoogle Scholar
Verkerk, M. A., “The Care Perspective and Autonomy,” Medicine, Health Care and Philosophy 4 (2001): 289-294.CrossRefGoogle Scholar
See Meisel and Kuczewski, supra note 37.Google Scholar
Shanley, M. L., “‘Surrogate Mothering’ and Women’s Freedom: A Critique of Contracts for Human Reproduction,” Signs 18, no. 3 (1993): 618-639, at 621.CrossRefGoogle Scholar
Purdy, L., “Women’s Reproductive Autonomy: Medicalisation and Beyond,” Journal of Medical Ethics 32 (2006): 287-291, at 287.Google Scholar
Rothman, B. K., Recreating Motherhood: Ideology and Technology in a Patriarchal Society (New York: W.W. Norton., 1990); Thompson, C., “Fertile Ground: Feminists Theorize Infertility,” in Inhorn, M. and van Balen, F., eds., Infertility around the Globe: New Thinking on Childlessness, Gender, and Reproductive Technologies (Berkeley: University of California Press, 2002): at 52-78.CrossRefGoogle Scholar
Mahoney, J., “An Essay on Surrogacy and Feminist Thought,” Law, Medicine, and Health Care 16, no. 1-2 (1988): 81-88, at 82.CrossRefGoogle Scholar
New York State Task Force on Life and the Law, Advisory Group on Assisted Reproductive Technologies, “Thinking of Becoming an Egg Donor? Get the Facts Before You Decide!” Department of Health, State of New York, available at <https://www.health.ny.gov/publications/1127.pdf> (last visited November 22, 2017) [hereinafter cited as New York State Task Force].+(last+visited+November+22,+2017)+[hereinafter+cited+as+New+York+State+Task+Force].>Google Scholar
See New York State Task Force, supra note 46.Google Scholar
Maxwell, K. N., Cholst, I. N., and Rosenwaks, Z., “The Incidence of both Serious and Minor Complications in Young Women Undergoing Oocyte Donation,” Fertility & Sterility 90, no. 6 (2007): 2165-2171.CrossRefGoogle Scholar
Whitney, S. N., McGuire, A. L., and McCullough, L. B., “A Typology of Shared Decision Making, Informed Consent, and Simple Consent,” Annals of Internal Medicine 140 (2003): 54-59.Google Scholar
See Ho, supra note 38; see Kuczewski, supra note 38.Google Scholar
Cohen, C. B., ed., New Ways of Making Babies: The Case of Egg Donation (Bloomington: Indiana University Press, 1996).Google Scholar
Barney, S., “Accessing Medicalized Donor Sperm in the US and Britain: An Historical Narrative,” Sexualities 8, no. 2 (2005): 205-220.Google Scholar
Akin, J. W., Bell, K. A., Thomas, D., and Boldt, J., “Initial Experience with a Donor Egg Bank,” Fertility & Sterility 88, no. 2 (2007): 497e1-497e4.Google Scholar
See ASRM, supra note 29.Google Scholar
Rosenberg, H. and Epstein, Y., “Follow-up Study of Anonymous Ovum Donors,” Human Reproduction 10, no. 10 (1995): 2741-2747.Google Scholar
See New York State Task Force, supra note 46.Google Scholar
Tong, R., “Toward a Feminist Perspective on Gamete Donation and Reception Policies,” in Cohen, C. B., ed., New Ways of Making Babies: The Case of Egg Donation (Bloomington: Indiana University Press, 1996): at 138-155.Google Scholar
Thorne, B., “Feminism and the Family: Two Decades of Thought,” in Thorne, B. and Yalom, M., eds., Rethinking the Family: Some Feminist Questions (Boston: Northeastern University Press, 1992): at 3-30; see Rothman, supra note 44.Google Scholar
See Almeling, supra note 2.Google Scholar
See FDA, supra note 6.Google Scholar
See ASRM, supra note 29.Google Scholar
German, E. K., Mukherjee, T., Osborne, D., and Copperman, A. B., “Does Increasing Ovum Donor Compensation Lead to Differences in Donor Characteristics?” Fertility & Sterility 76, no. 1 (2001): 75-79.CrossRefGoogle Scholar
See ASRM, supra note 29.Google Scholar
See Pennings, supra note 3.Google Scholar
See Meisel, and Kuczewski, , supra note 37.Google Scholar
See German, et al., supra note 62.Google Scholar
See Holster, , supra note 34.Google Scholar
See Kuczewski, , supra note 38.Google Scholar
See Annas, , supra note 5; See Robertson, supra note 3.Google Scholar
See Annas, , supra note 5.Google Scholar
Ryan, B. and Plutzer, E., “When Married Women Have Abortions: Spousal Notification and Marital Interaction,” Journal of Marriage and Family 51, no. 1 (1989): 41-50.CrossRefGoogle Scholar
Reddy, D. M., Fleming, R., and Swain, C., “Effect of Mandatory Parental Notification on Adolescent Girls’ Use of Sexual Health Services,” JAMA 288, no. 6 (2002): 710-714.Google Scholar
See Ryan and Plutzer, supra note 71, at 42.Google Scholar
To continue the comparison with abortion practices, Planned Parenthood does suggest that a partner can provide support for a woman making a decision, but also asserts that it is her decision “100%”. Planned Parenthood, “Considering Abortion,” available at <https://www.plannedparenthood.org/learn/abortion/considering-abortion> (last visited November 22, 2017). Furthermore, most state-mandated abortion counseling materials actually cast the partner/boyfriend as a coercive influence on women, implying that they might force women into having abortions to escape the responsibilities of fatherhood. Johnson, K. M., “Protecting Women, Saving the Fetus: Symbolic Politics and Mandated Abortion Counseling,” Women’s Studies International Forum 47 (2014): 36-45.Google Scholar
Castel, J. G., “Should Physician’s Seek the Consent of the Patient’s Spouse?” Canadian Family Physician 25 (1979): 696-698; Ehrenreich, B. and English, D., Complaints and Disorders: The Sexual Politics of Sickness (New York: The Feminist Press at CUNY, 1973).Google Scholar
Regarding spousal consent, see Planned Parenthood of Central Missouri v. Danforth [428 US 52 (1976)]. Regarding spousal notification see Planned Parenthood of Southeastern Pennsylvania v. Casey [505 US 833 (1992)].Google Scholar
Lublin, N., Pandora’s Box: Feminism Confronts Reproductive Technology (Lanham: Rowman and Littlefield Publishers, Inc., 1998); see Thompson, supra note 44.Google Scholar