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Managing legal uncertainty in sperm donation

  Thursday, 02 l 12 l 2010 Source:  The Straits Times   
By: Andy Ho

sperm-donationIN THE fuss over the recent mix-up of sperm used to create a test-tube baby at a private hospital here, the rights and responsibilities of the inadvertent sperm donor were largely passed over. There are now three sperm banks – one each at the Singapore General Hospital (SGH), National University Hospital and KK Women’s and Children’s Hospital. All private fertility clinics source the sperm they need from these banks.

However, the SGH bank, which began  operations in 1988, has had just eight donors in the last five years. The situation at the two other banks is just as bad. One expert reckons that there are eight recipients for every donor available. A reason so few men donate may be the lack of a clear law about donor rights and responsibilities. In fact, given the great variety of artificial reproductive technologies (ART) – the simplest being artificial insemination using donor sperm – a comprehensive parentage law is needed.

These technologies lead to diverse combinations of parentage – surrogacy can lead to at least three parents, say – but the law has not kept up with this. As a result, the legal status of a child conceived using any type of ART remains uncertain. The statutes involved include the Women’s Charter, Adoption of Children Act, Inheritance (Family Provision) Act, Guardianship of Infants Act, and the Legitimacy Act. Yet the terms “infant”, “child”, “legitimate” or “illegitimate” are never defined in any of these laws. Neither is “father” defined except in the Adoption of Children Act, which states that “‘father’ in relation to an illegitimate infant, means the natural father; ‘parent’, in relation to an illegitimate infant, does not include the natural father”.

According to Section 114 of the Evidence Act, however, the legal husband is always the legal father of the child. The only exception is if he had “no access” to his wife at the time of conception. This law, entitled “Birth during marriage conclusive proof of legitimacy”, asserts that unless sexual intercourse was impossible between the parties – the husband being overseas, say – it “shall be conclusive proof that he is the legitimate son of that man”.

This particular law defines “conclusive proof” as meaning that the court “shall not allow evidence to be given for the purpose of disproving it”. So DNA evidence cannot be used to disprove paternity during a valid marriage (or for 280 days after its dissolution). Not even a dark child being born to a light-skinned couple can rebut that paternity. Note, however, that if “no access” is indeed proven, a child conceived using donor sperm would not be the husband’s child – although the Women’s Charter requires that a man must provide maintenance for such a child if he has accepted it as a member of his family.

Since artificial insemination using donor sperm is permitted only for a married woman whose husband consents to it, the child thus conceived and born is likely to be accepted by the husband as a family member. In the usual case then, a sperm donor has no paternity rights or responsibilities. But what if the spouses separate before the child is born? Under the Charter, “any person who is a guardian or hasthe actual custody of the child” can ask the (undefined) parent for support. Can the mother taking care of the child now sue the sperm donor as biological father for maintenance of the child?

One might counter that anonymity is assured for sperm donors. Recipients also want that anonymity preserved, so they can bring the child up as their own. But things can change. In 1990, Britain passed its Human Fertilisation and Embryology Act to regulate ART. Just 15 years later, it amended that law to remove sperm donor anonymity. This was so that children thus conceived may, upon reaching 18, petition to identify their biological fathers.

Locally, an adopted child already has a right to know the truth of his parentage under specific conditions. A child conceived using donor sperm could argue for the same qualified right by analogy. Thus, for example, the child conceived as a result of a sperm mix-up could try to seek a court order to have the fertility clinic disclose donor identity. The reason for doing so may not be frivolous: In some instances, identifying the donor can give the child a more complete medical history, especially about inheritable genetic conditions.

Conceivably, at least two types of court proceedings – those for maintenance or medical necessity – may compel donor identity disclosure. While the man in the street may not be aware of these issues, he is likely to be worried about the possibility of becoming legally obligated to some child fathered using his donated sperm.

Clearly, a comprehensive parentage law to definitively establish the rights and responsibilities of donor, recipient, and child is needed. It might allow donors to opt for or out of all paternity rights and responsibilities, to which the recipient must also agree before using the sperm. Such a law might also allow the child access to donor identity under strictly defined (medical) circumstances. When these concerns are clearly laid out, more might be willing to donate the sperm that many infertile couples need.

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