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Before he died of metastatic cancer, Barry Hall deposited a sperm
sample with the Fertility Institute of New Orleans, Louisiana. Hall
donated the frozen sperm sample to Christine St. John, his companion,
in consideration of his “love and affection” for her,
allegedly for her to create a child. After his death, St. John
went to the sperm bank to retrieve the frozen sperm sample. Hall’s
relatives objected, obtaining a preliminary injunction, barring
the Fertility Institute from providing the sample to St. John until
the case was heard on its merits. A preliminary injunction
is a court order barring a party from certain conduct until the
matter under dispute is litigated and decided in court. Hall’s
son provided an affidavit to the court, declaring “embarrassment
and anger he suffers at the prospect of posthumous creation of
blood relatives.” Hall v. Fertility Institute of New
Orleans, 647 So.2d 1348 (La App. 4 Cir. 1994).
From the perspective of a biologist, consider the fact that Kane’s
and Hall’s sperm contained some of the same genes present
in their living relatives. Shouldn’t it have been in
their genetic interest to encourage procreation with the sperm
to ensure (or, at least, increase the probability) that their genes
would persist in successive generations? Richard Dawkins,
an evolutionary biologist, argues that individual organisms “behave
in such a way as to maximize the survival of copies of genes inside
them” The Extended Phenotype, page 55, Oxford
University Press, 1982. Why did the children oppose it?
Fertility King. Dr. Cecil Jacobson operated the
Reproductive Genetics Center in Fairfax County, Virginia, an affluent
community just outside the Washington, D.C. beltway. Jacobson
provided fertility counseling, as well as semen for artificial
insemination. The sperm, he told his patients, was procured
from anonymous donors. One patient, who had conceived with
a sperm sample obtained from Jacobson’s center, suddenly
recognized Jacobson’s face in her young toddler. She
was not only the patient Dr. Jacobson had deceived. In a
courtroom proceeding, Jacobson was accused of fathering as many
75 children in the Washington area during the late 1970’s
and 1980’s. Jacobson eventually admitted to using his
own sperm, but argued that he believed his own fresh sperm was
more effective than the center’s frozen sperm. He would
tell some patients that he was using fresh sperm since it increased
the chance of pregnancy over frozen sperm. Apparently, he
would explain that the sperm donor was waiting in another room,
and then would go into the office bathroom and generate an ejaculate. Jacobson
was convicted of fraud for using his own sperm to impregnate patients
and sentenced to a five-year jail term. Howe, Washington
Post, November 20, 1991, Page A1.
Post-mortem sperm extraction.
Internet babies. Sean and Leon had been living
together for twenty years, but never married, because of a state
prohibition against same-sex marriages, and never had children. After
a succession of pet dogs, Sean turned to Leon one evening, and
asked him whether it wasn’t about time for them to have a
child. That night, they logged on to the Internet and found
a variety of web sites selling sperm and eggs, including sperm
from Nobel Prize winners and eggs from the ovaries of attractive
young models. A few clicks of a mouse button later, they
had ordered one frozen vial of sperm from a beautiful, aspiring
actor, and a dozen eggs from a Nobel prizing winning biologist. The
purchases were shipped to a local fertility clinic, where technicians
created Sean and Leon’s perfect baby. It was implanted
into a surrogate mother, whose uterus Sean and Leon had rented
to carry the baby to term. When a beautiful baby girl was
born, the surrogate mother refused to give up the child. She
claimed that Sean and Leon’s activity in purchasing gametes,
and then using those gametes to create Baby A who shared none of
their genetic material, was against public policy. As a consequence,
she argued, the surrogacy contract should not be enforced. The
baby had already bonded with her, she alleged, and it would be
in the best interests of the child to remain with her, the surrogate
mother. The matter is now before a family court judge. In
whose favor should she decide? Sean and Leon satisfied the
intent to procreate test, but the surrogate was the gestational
mother. The biological parents were off having a good time
on the money they made from the deal, and had no interest in Baby
A.
Choosing the gender of your baby. You can
now choose whether to have a baby girl or boy. The sex of
a child is determined by the sperm which fertilizes the egg. All
eggs have one X-chromosome. Sperm can carry either an X-
or a Y-chromosome. If the egg is fertilized with a sperm
containing a Y-chromosome, the egg will develop into a boy (XY). If
a sperm carrying an X-chromosome achieves fertilization, a girl
(XX) will result. X-bearing sperm are heavier than sperm
carrying a Y and can therefore be separated by their weight. Separated
sperm can be analyzed under a microscope to determine the efficiency
of the separation and, if necessary, can be subjected to another
separation step. In 1996, the Genetics and IVF Institute
in Fairfax, Virginia, reported the birth of the world’s first
baby born using the separation technique called “MicroSort.” A
subsequent clinical study using MicroSort reported that offspring
were of the desired female gender in 92.9% of the pregnancies.
Most of these pregnancies and births were achieved after simple
intrauterine insemination. According to the authors, “The
ability to separate X- and Y-bearing sperm cells provides new opportunities
for women who are carriers of X-linked disorders. There are over
350 X-linked diseases in humans including hemophilia, Duchenne
muscular dystrophy, and X-linked hydrocephalus. In most cases,
the X-linked diseases are only expressed in the male offspring
of carrier mothers. The use of MicroSort for the enrichment of
the X-chromosome bearing sperm cells can now allow for the preferential
conception of unaffected female offspring.” Fugger
et al., Human Reproduction, 13(9):2367-2370, 1998.
Accession. The doctrine of accession refers to
the right by which the owner of property becomes entitled to any
improvements, changes, or additions to it, when a third-party has
willfully taken unauthorized possession of it. Say that after
the court had awarded the sperm samples to Deborah Hecht, the Kane
children broke into the cryobank, and stolen the sperm samples. Deciding
that it was in their own genetic interest to procreate using their
father’s sperm, they hired a surrogate mother to artificially
inseminate herself with their Dad’s sperm and carry a half-sibling
to term. When Deborah discovered the theft, she sued the
Kanes and the surrogate, asking the court for possession of the
child under the doctrine of accession.
Who is the father of a child conceived in a marriage by an
unknown sperm donor?
Turczyn v. Turczyn, PICS Case No. 00-2226 (Pa. Super. Nov.
14, 2000). The mother was artificially inseminated
with sperm from an unknown donor after she was unable to become
pregnant with husband’s sperm. After she became pregnant
with quadruplets, Husband announced that he wanted a divorce.
The couple separated, but Husband actively participated in wife's
pre-natal care. After the children were born, Husband selected
the names of two of the children, paid for their health insurance,
and helped with the care and feeding of the children. Mother
sued for child support, and the trial court entered an order
requiring Husband to pay child support. Husband appealed, arguing
that the trial court had erred when it determined that he had
failed to overcome the concept of “presumptive paternity.” Under
presumptive paternity, a child conceived or born during a marriage
is presumed to be a child of the marriage when there is an intact
family or marriage to preserve. Because there was no longer an
intact family here, the Superior Court determined that the presumption
of paternity did not apply. However, the court held that he was
estopped from denying paternity because he had held the children
out to be the children of his marriage. In particular, Husband
had actively participated in the lives of the quadruplets from
their birth until the time he left the marital home several months
later. The court noted that Husband had selected two of the quadruplets'
first names, purchased a minivan for the use of mother and the
quadruplets, and helped to feed, clothe and change the quadruplets. Because
Husband “accepted his role
as the quadruplets’ father during the nine months in question,” he
was estopped from denying the paternity of the quadruplets, the
court held. American Lawyer Media, Pennsylvania Law Weekly,
December 04, 2000.
Sperm competition. Sperm compete with each other for
the scarce supply of eggs. Certain insects have devised a
highly imaginative strategy to resolve conflicts over paternity
created by this sperm competition. The yellow dung fly’s
solution is unique. Females of this species are forcibly
copulated on cow dung pats. Sperm is delivered by the male
internally into the female, but fertilization is not instantaneous. Instead,
females have three sperm storage organs – called a “spermathecae” – in
which sperm can be stored after copulation, andlater used to fertilize
the eggs. When two males successively copulate with the same
female, the female can segregate the sperm from each male into
different spermathecae compartments. Using specialized muscles,
she actively transfers sperm from consecutive matings from the
site of insemination to different spermathecae. Hellriegel
and Bernasconi, Animal Behavior, 59:311—317, 2000. The
factors that determine the choice of which sperm will succeed in
fathering the offspring are still a mystery.
While
human beings have not evolved such a clever physiological organ
for sperm selection, the ability to store and freeze sperm artificially
outside the body has opened the door to a similar strategy. A
sperm bank, in some circumstances, is the human equivalent of a
spermathecae. If Deborah Hecht was unable a boyfriend with
as good sperm as William Kane’s, she could return to the
sperm bank for his, rather than any current boyfriend’s. |
