Monday, April 16, 2007

Oregon Man Deemed Donor - No Rights to Sperm Mistakenly Provided to Second Couple

no. 354

"Judge says accidental sperm donor has no right to know if he's a father"
Posted by The Oregonian April 16, 2007 15:56PM
-- Ashbel S. Green


"A Portland man whose sperm was inadvertently given to a Salem-area woman has no right to find out whether he is a father, a Multnomah County judge has ruled.

Circuit Judge Henry Kantor said he was not finished writing his opinion, but wanted the parties to know his decision because it had been so long - nearly seven months - since they argued the case before him.The man, who sued for a paternity test under the initials M.H., claimed that he produced a sperm sample at Oregon Health & Science University's fertility clinic in September to impregnate his fiancee. The same day, a Marion County couple that had struggled to start a family was visiting the clinic. A mix-up occurred, and clinic workers gave M.H.'s sperm sample to the woman."

"Michael G. Smith, the attorney for the Marion County couple, praised the decision. He said he expected M.H. to appeal. "I think essentially what they would be doing is to ask the Oregon Court of Appeals to declare Oregon's artificial insemination statute unconstitutional, which is a tall order," Smith said"

Full text of the Oregonian article at the Annex.

My Opinion:

I can understand the plight of the couple given the sperm by mistake but I think the judge got the decision wrong. I'll have to wait to see the written opinion once it is public but to me it appears the decision has a fatal flaw.

I have posted the Oregon statute on the Annex but it essentially says a Donor has no rights to the children created by the donated sperm. [Oregon State Law Section 109.239].

The flaw as I see it is that the intent of the plaintoff was never to be a donor but that his sperm only be used with respect to his wife so how did he become reclassified as a donor? If he is not a donor his rights should not be cut off. I disagree with the defendant's attorney. The appeal does not have to invalidate the law but it does have to attack the application of the law to this plaintiff.


Bea said...

I agree with you. If he has not agreed to donate, if he has not entered into that sort of contract legally, how can a ruling in his favour upset the laws of donation? It doesn't seem logical.

Having said that, I'm not sure of all the details - how much he's asking and from whom, etc etc. (In a general sense, not financial, I mean.)


Unknown said...

Ah, but is it his child? Genetically, it may be his offspring, but what is his status to the potential fetus legally?

He didn't want the child and never intended to conceive it, so I would think it's not "his". Does he have a right to know if his sperm created a child? Hard question to answer. If he has no legal obligation to support the child, then I would say that he does not have a right to know. I can see how he would want to know, but just because we "want" something does not mean we have a "right" to have it.

DI_Dad said...

I think the idea is that the child is his as he intended to create a child he would be the bio & social parent to. The problem was he intended that his fiance would be the mother and not the woman who received the sperm in error. I think that is the fact pattern.

If he was just donating sperm I understand and agree he should have no rights but here I believe his intent was not to just donate sperm but the sperm would be used for he and fiance to create their own bio child.

This case must be such an emotional nightmare. Did you folks see the part where the clinic was supposedly trying to get the couple to abort the child so the issue would just go away. How terrible for everybody and what this child will think if it learns of this mess.

Unknown said...

That's kind of where I am on the issue, Eric.

Were I this child, and I found out about all of this several years after... I shudder to think of what would happen. I do predict that my hate would "walk the earth as a man."

As to whether this guy has parental rights to the child, I would agree with the judge. He doesn't. It's not his kid. Regrettable mistake, but it's more important that the child be put in a stable, legal home than this man be given whatever it is he's seeking.