1. Introduction
2. The Right to Procreate
  2.1 Skinner v. Okla.
  2.2 Wiscon. v. Oakley
  2.3 Involuntary Sterilization
  2.4 Kin Selection
  2.5 Marriage
  2.5.1 Anonymous
  2.5.2 Tompkins v. Tompkins
  2.5.3 Williams v. Williams
  2.6 Transgender Marriage
  2.7 Polygamy
  2.8 Prostitution
  In Brief
3. Who Is My Family?
3.1 Family Identity and the Right to Associate with Kin
  3.2 Marriage and the Paternity Presumption
  3.2.1 Jones v. Trojak
  3.2.2 Michael H. v. Gerald D.
  3.2.3 William "TT" v. Siobhan "HH"
3.3 Paternity Estoppel
3.4 Equitable Parenthood
3.5 Duty to Support
  3.6 The Paramour Statute
  3.7 Maternal Transmission of Citizenship
  In Brief
4. Whose Child Is This?
  4.1 The Surrogate Cases
  4.1.1 Johnson v. Calvert
  4.1.2 Belsito v. Clark
  4.2 Shotgun Weddings
  4.2.1 Fairchild v. Fairchild
  4.2.2 Gard v. Gard
  4.2.3 B. v. S.
  In Brief
5. Shopping For Eggs & Sperm
  5.1 Bad Sperm
  5.2 Cryogenic Orphans & Waifs
  5.2.1 Gifts of Sperm
  5.2.2 Who Is My Father?
  In Brief
6. Sexual Orientation
  6.1 The Right to Practice One’s Sexual Orientation
  6.2 Discriminating on the Basis of Sexual Orientation
6.3 Same-sex Adoption
6.4 Same-sex Marriages
  In Brief

In Brief        

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.