Here’s a Delphic riddle for our times: When is your father not your father? Answer: when he’s a sperm donor. Consider a case now before the Kansas Supreme Court. An unmarried woman in her early thirties decided that she wanted a child and asked a friend to be a sperm donor. He agreed, one thing led to another, which led to a syringe of his sperm, which led to the birth of twins. The mother says that she always intended to raise the kids alone and never wanted the friend involved in their lives. The donor says that he planned to be the twins’ father in name and practice. There is no written contract. What does the contemporary Solomon do?
Well, in a Kansas trial court, Solomon rules that without a contract the twins have no father. The man who provided half of the children’s genetic material has no more relationship to them than does the taxi driver who rushed their mother to the hospital when she went into labor. Now, assuming that the supreme court upholds the decision, the state of Kansas can celebrate adding two more fatherless children to its population, and Mom can rejoice by dressing her twins in bibs—available over the Internet—proudly announcing: my daddy’s name is donor.
You’d think that we had enough problems keeping fathers around in this country, what with out-of-wedlock births (over a third of all children are born to unmarried women, and, in most cases, the fathers will fade from the picture) and divorce (the average divorced dad sees his kids less often than he takes his car in for an oil change). But these days, American fatherhood has yet another hostile force to contend with: artificial insemination. This may sound a tad overheated. After all, AI has been around, by some accounts, for over a century. And the number of kids born through the procedure each year, though steadily growing, remains quite small relative to the millions of babies conceived, as we can now say completely without irony, the old-fashioned way.
But aided by a lucrative sperm-bank service industry, an increasingly unmarried consumer base, a legal profession and judiciary geared toward seeing relationships through a contractual lens, and a growing cultural preference for individual choice without limits, AI is advancing a cause once celebrated only in the most obscure radical journals: the dad-free family. There are multiple ironies in this unfolding revolution, not least that the technology that allows women to have a family without men promotes the very male carelessness that leads a lot of women to become single mothers in the first place. And fatherless families are a delicate proposition, as AI families are discovering, since all the scientists’ technology and all the lawyerly contracts can’t take human nature out of human reproduction.
In the middle of the twentieth century, artificial insemination seemed as family-values-friendly as Dr. James Dobson himself. If a woman had trouble conceiving, doctors would inject her husband’s sperm directly into her uterus. Or, if the husband’s sperm count was low, physicians would enlist the help of medical students willing to provide their sperm. AI was rare, producing 5,000 to 7,000 American babies a year.
It was also hush-hush. Doctors often kept no records or they signed false birth certificates, and they firmly instructed patients to tell no one, especially the kids. Most children conceived through AI during that era probably went through life unaware that Dad was not a biological relation. From today’s vantage point, the approach seems typical of a time too enamored of family secrets and overly cowed by medical authority. Yet if the mid-century approach to artificial insemination was excessively protective of the feelings of infertile men and failed to grasp that family secrets have a way of unraveling rather messily, it also recognized, as did the culture at large, that a child needs both clarity and an intact home.
That recognition began to weaken as technology, economics, and a liberalizing social climate worked together to expand AI into brave new territory. First: technology. By the mid–twentieth century, scientists figured out the science of cryo-freezing cattle sperm; by the late seventies, they had perfected techniques that could store the more delicate labor of men. This innovation led to the expansion of that peculiar contemporary entity, the sperm bank, and that in turn led to the transformation of AI from a fringe medical procedure to a consumer business. Freezing enabled sperm banks not only to weather but also to benefit from the HIV-AIDS epidemic. Bankers can freeze a man’s sperm for six months—the time that it can take for HIV to show up in the blood test of an infected individual—and then do a blood test on the donor before putting the product on sale, making frozen sperm safer than fresh.
Then: market economics. In his fascinating new book, The Genius Factory, David Plotz describes the 1980 origins of the Repository for Germinal Choice. Widely known as the “Nobel Prize sperm bank,” because (supposedly) it specialized in the seed of Nobel laureates, it was one of the earliest banks, and the first to treat would-be mothers as customers rather than as patients. The founder, an eccentric millionaire eugenicist named Robert Graham, marketed his stable of studs through brochures touting such qualities as “beautiful teeth,” “happy and radiant personality,” and, of course, a dazzling IQ. Today’s sperm banks—often mighty enterprises compared with the corner-store operation that was the Nobel bank—provide lengthy online catalogs of donors, containing basic stats like height, hair, eye color, and education. If donor #305 has the right coloring and smarts to be your child’s father, you can make sure that he’s the one for an extra fee, by buying his psychological test, his baby photo, an audio interview with him, and perhaps even the sperm bank’s notes from his intake interview.
And finally: a changing social climate. The increasingly sophisticated, market-driven technology eventually joined forces with what I call the “unmarriage revolution”—that is, the decoupling of marriage and child rearing—and extended itself to single women and lesbians. As early as the seventies, a small number of lesbians were bypassing the medical establishment by procuring the necessary body fluid from male friends or acquaintances, and buying a mason jar and a turkey baster from the local hardware store.
Now they’re more likely to go to the sperm store like everyone else, especially since a 2006 American Society for Reproductive Medicine Ethics Committee report calling for equal access to fertility treatment for gays, lesbians, and singles. These days, anyone can buy sperm: married couples, gay couples, and single women; women on the AARP mailing list, women barely out of college, 40-year-old women who have tried desperately to find husbands and have no other hope of becoming mothers, and 20-something women who—well—just want to, that’s all; rich and famous women like Annie Leibovitz, Wendy Wasserstein, and Mary Cheney; and divorced third-grade teachers who live in modest two-bedroom condos and are fed up with men. Whoever. The California Cryobank, the country’s largest, estimates that about 40 percent of its customers are unmarried women. The Sperm Bank of California says that two-thirds of its clientele are lesbian couples. Most professionals believe that about 1 million American children are the progeny of sperm donors—the large majority of them anonymous—with 30,000 more boosting the ranks each year.
Subtract the children born via AI to infertile married couples: that’s still a lot of fatherless kids.
Most fertility specialists—except perhaps the Nobel factory’s, whose ambition was to improve the race—probably never imagined themselves as building a new family order. They just believed that they were helping the unfortunate, a view that the joyful maternal testimonials filling sperm-bank websites support. But that doesn’t answer the question of whether spreading happiness—as opposed to the entirely different matter of healing the sick—automatically validates artificial insemination’s almost entirely unregulated march into the mainstream of American life.
For starters, an AI foul-up can be traumatic. Just ask the white British woman who thought she’d been inseminated artificially with her white husband’s sperm—until she delivered black twins. For decades, sperm banks have proliferated like Starbucks. You could open one in your garage or in back of the local pet store. Plotz mentions a scientist who told a television reporter that, along with running a small sperm bank, he also bred dogs. In fact, he went on, he kept his human and canine sperm side by side in his freezer. The threat of a harried technician accidentally reaching for Rin Tin Tin’s seed as a potential mother-to- be waited nervously nearby was enough briefly to rouse California public health officials, who shut down the sperm bank. For the most part, though, industry oversight is minimal. Sperm banks must register with the FDA and screen for several diseases, including HIV, but that’s about it.
The thorniest problems unleashed by widespread AI have had less to do with mix-ups than with what has always been one of society’s most vexing questions: Who is the father? In a more conservative time, lawyers joined—critics might say conspired with—doctors to contain the potential ambiguities of paternity and to bolster the social consensus that children should grow up with married parents. In 1973, the American Bar Association published the Uniform Parentage Act, a model state law that proposed that a woman’s husband automatically be deemed the legal father of her AI children—assuming that he had consented to the procedure and that a doctor had performed the insemination. The donor dad would be a legal cipher, just as he was a domestic one.
But with a growing number of AI cases involving single women and lesbian couples, the pretense of the donor’s nonexistence is no longer tenable, since there’s no father around. The issues surrounding the practice have grown vastly more complicated: Can a sperm donor be a father? Can his mother be a grandmother? Can a child conceived through AI inherit property from her biological father? Can a child have two mothers and no father? How about two mothers and a father? Can the lesbian partner of a biological mother have custody rights if the couple breaks up? Can she be required to pay child support? And, again, who are the grandparents?
Unfortunately, in the absence of any other authority, answering these questions has fallen to family court judges, who are—and I mean no disrespect—not always the sort you’d expect to be on the short list for the Louis Brandeis Award for Cautious Jurisprudence. True, these are hardly people who dream of redefining the family when they promise to uphold the Constitution; probably the last label that they imagine applying to themselves is “activist judge.” But when they try to figure out whether a woman has the right to visit the child she diapered, fed, and read to for four years before she and her partner split up, they have only a small number of blunt instruments in their legal toolbox: case law on custody and visitation, the best-interests-of-the-child doctrine, contract law, and so forth. They aren’t thinking that their decisions could be enshrining in law a profound cultural transformation that few Americans have had a chance to register, much less opine on. In fact, many legal theorists argue that in making such decisions, the courts are simply “catching up with reality.”
But it turns out to be more like reality on Mars. In unwitting alliance with a fertility industry fiercely protective of anonymous gamete donation, the courts have given their imprimatur to two nonsensical biological conditions: children who have no fathers and fathers who have no children. The old Uniform Parentage Act had it that a donor had no paternal standing, because at the time the law needed to resolve the potential problem of two fathers: the donor and the mother’s husband. It should be obvious that in the case of a single or lesbian mother, the problem is quite different: there is no “other father.”
But it hasn’t proved obvious to most legal experts, who continue to revert to the Uniform Parentage Act formula: as long as a doctor performs the insemination or a sperm bank sells the sperm, the donor is not a father. This doesn’t simply mean that the child is fatherless in the way that, say, an orphan is fatherless. Rather, the child is born into an entirely new human circumstance. For, according to the law, he never had a father at all. The man who fathered him is not in fact his father; instead, he’s the originating site of organic material that is for sale, like a sulfur mine or a fish farm. Witness the title of a 1994 Dickinson Law Review article: “The Potential for Products Liability Actions When Artificial Insemination by an Anonymous Donor Produces Children with Genetic Defects.”
To justify this new “reality,” many legal scholars argue that we should reject biology as the basis of parentage in favor of the principle of “intentionality.” It’s the person—or persons—who planned the child who have parental rights. A donor doesn’t intend to become a parent to his offspring—he is an intentional unparent, if you will—while the woman who uses his sperm does, and therefore is. “State interest is best served by honoring the preconception intent of each adult who took part in conception, regardless of his/her biological role,” Justyn Lezin argues in The Hastings Women’s Law Journal in language typical of this line of thinking.
You shouldn’t have to be Brandeis to see the land mines that line the road of intentionality. For one thing, intentionality is wildly inconsistent with the law’s traditional presumption of paternal responsibility. Say a man has a drunken one-night stand with a woman he meets in a bar. If she gets pregnant, the law sees him as a father, and he must pay child support for the next 18 years. But if a college student visits the local sperm bank twice a week for a year, produces a dozen children, and pockets thousands of dollars, he can whistle his way back to econ class, no cares, no worries. Intentionality can’t explain that disconnect.
And that’s just for starters. A woman participating in an online discussion group at the Donor Sibling Registry, a database for AI parents and children, describes how she and her lesbian partner decided to have a child together. After she became pregnant through a donor, the couple purchased a house and settled in to wait for the blessed event. But several months later, the partner lost interest and moved out, announcing that she no longer intended to become a parent. If it were the child’s father who pulled that stunt, no rational person would disagree: your baby, your responsibility, Bub. But in what sense is the partner a parent to a child she’s never seen, much less nurtured, and to whom she is biologically unrelated? Simply because for a few months she thought that she wanted to be a parent? And why should her intent prevail over other goods—in this case, the biological mother’s need to create a loving environment for the child, or—now here’s a radical idea!—the child’s interest in knowing her father?
As intentionality has come to supplant biology, the law, by pretending nature doesn’t exist, has not caught up with reality; it has pole-vaulted over it. A family court in Burlington County, New Jersey, recently put two women on a state birth certificate. Last year, Virginia issued a birth certificate for a gay couple that read “Parent A” and “Parent B.” Massachusetts officials proposed crossing out “Father” on the state’s birth certificate and replacing it with “Second Parent” (until then-governor Mitt Romney nixed the plan). Many legal scholars are now proposing that courts move beyond the “heterosexist model” entirely. Why not put three parents—or four, for that matter—on the birth certificate? This past January, an Ontario court did just that. Intentionality, it seems, can accomplish almost anything.
AI’s potential for deconstructing the family has not been lost on radical feminists. In Baby Steps: How Lesbian Alternative Insemination Is Changing the World, Amy Agigian, a sociology professor at Suffolk University in Boston, observes: “Lesbian appropriation of medical technology (AI) that was intended to shore up nuclear families” has “radically challenge[d] the power structure, assumptions, and presumed ‘naturalness’ of major social institutions.” AI promotes a “postmodern family form that emphasizes affinity over biology and (patri)lineage.” For thinkers like Agigian, one of AI’s greatest benefits is that it dethrones what Canadian feminist Kathryn Pauly Morgan calls PIVMO (penis in vagina with male orgasm). Postmodern anthropologists studying reproduction technology—and there are enough of them to be producing a steady stream of volumes with titles like Conceiving the New World Order—have joined in, arguing that the whole idea of kinship based on sexual procreation is a Western construct, happily on its way out.
Highly credentialed mainstream experts are also taking a take-’em-or-leave-’em approach to dads. There was Louise Silverstein and Carl Auerbach’s infamous “Deconstructing the Essential Father,” a 1999 American Psychologist article arguing that “neoconservative social scientists” who cautioned against the fatherless family simply wanted to uphold “male power and privilege.” More recently, Peggy Drexler, an assistant professor at Weill Medical College of Cornell University and a board member of New York University’s Child Study Center, has made a similar case in Raising Boys Without Men: How Maverick Moms Are Creating the Next Generation of Exceptional Men. Drexler announces that she herself is raising two children with her husband of 30-plus years, but one has to wonder whether her book isn’t a silent cry for help. Her index under “fathers” includes: “absent, after divorce,” “destructive qualities of,” “spending limited time with children.” “In our society, often we idealize and elevate the role of father in a boy’s life without giving credence to the fact that actual fathers can be destructive and a boy may be better off without his father,” she informs us. In Drexler’s view (spoiler alert for Mr. Drexler), dadless boys are actually better, more sensitive and more “exceptional.”
More ordinary “choice mothers,” as many single women using AI now call themselves, are usually not openly hostile to fathers, but they boast a language of female empowerment that implicitly trivializes men’s roles in children’s lives. The term “choice mothers” frames AI as a matter of women’s reproductive rights. Only the woman’s decision making—or intention—carries moral weight. Similarly, advocates often cite the benefits of single motherhood’s freedom from “donor interference.” “Single moms avoid the need to discuss and negotiate around key parenting issues,” one Toronto social worker told iParenting Media. “She can shape a child in her own unique vision.”
And in the same choice-trumps-everything spirit, choice mothers emphasize that they choose their kids. All the planning and deliberation that they’ve got to go through to have children, they suggest, might make them better parents than those who just “breed.” Their kids are “wanted children,” observes sociologist Judith Stacey. The implication that sexual intercourse brings forth hordes of unwanted, unloved children, while AI produces a chosen elite, sometimes hangs in the air. It’s a view that one of the pioneer choice mothers (though through adoption, not AI)—Joan “Mommy Dearest” Crawford—probably would have endorsed.
Still, while there’s very little research on AI families (and what there is suffers from size or design flaws), it’s a good bet that most single women who go sperm shopping—and that includes lesbians—don’t see themselves as you-go-girl! revolutionaries. On the contrary: their desires couldn’t be more traditional. They want a baby. They long for a family. Like married women who set out to become pregnant, they’re looking to feel needed, known, and rooted.
In her recent book Single by Chance, Mothers by Choice, Rosanna Hertz found that most of her (non-lesbian) subjects had struggled for years to find husbands and start families before finally concluding that they had no choice but to go it alone.
Many mothers find that for all the magnificence of human intentionality and free choice, biology just won’t go away. As they watch their children grow, they might notice an unfamiliar crooked smile or a musical talent when they have a tin ear. They wonder: Are these clues to the mystery man who is my child’s father? They often try to flesh out an image of the human being from the sperm bank’s description. Odd as it sounds, they may become attached, even romantically aroused—remember that they selected the donor because he sounded like the kind of man they might have wanted to marry. Plotz describes one mother who fantasized that she would “meet [the donor] serendipitously, fall madly in love, and he would become the father of his own children.” Another keeps a picture of a man she believes is her child’s donor by her bedside. Strangest of all is a Washington Post story about a Massachusetts mother of two who tracked down her children’s father, donor #929 from the California Cryobank, in Los Angeles. After visiting him, she moved her family to L.A. and changed her kids’ middle names to his surname.
For the children of single mothers, biology is also an unexpected and frequent visitor. Even Peggy Drexler can’t ignore the little boy, conceived by anonymous donor, who points to a strange man on television and exclaims: “There’s my daddy!” When her 15-year-old son wanted to track down his anonymous father, a Colorado woman named Wendy Kramer started the Donor Sibling Registry, a website that allows kids to search for other children of their donor fathers. More than 7,000 donor mothers and children have used the registry to try to locate half-siblings and sometimes fathers—close to 3,000 successfully.
True, not all donor children are keen on finding their fathers or siblings, just as not all adopted children set out to find their biological parents. Elizabeth Marquardt, at work on a book titled My Daddy’s Name Is Donor, finds a wide range of responses, from indifference to curiosity to angry obsession, and those feelings often change over time.
Yet even if the numbers of those suffering from father hunger are relatively small, their plight is consistent with a powerful human theme explored by storytellers from Homer to George Lucas: the child’s longing to know his father. On websites, unhappy donor kids are beginning to speak up. “I believe that it is a tragic turn for our society to celebrate fathers who intentionally disconnect themselves from their children,” writes the proprietor of Whosedaughter.com. “I’m 18 and for most of my life, I haven’t known half my origins,” Katrina Clark wrote in a Washington Post op-ed this past fall. Donor conception has always been about making adults happy, not children, she continued. As a child, she found herself jealous of a friend whose parents were divorced; at least the girl got to visit her father.
Some choice mothers anticipate the mystery-man dilemma and decide to use a “known donor”—a former boyfriend, a partner’s brother, or just an acquaintance—to avoid it. But the inherently ambiguous nature of the father’s relationship with his children can still be a source of misery for women, their children, and, as in the Kansas case, for men. Consider Drexler’s example of the eight-year-old who says to his lesbian mother: “I have no father.” “Sure you do,” she answers. “You have your dad”—who lives 250 miles away—“and you have Michael”—her very warm, loving brother, who’s a terrific father figure. The child is not reassured. “I don’t know my dad at all, and Michael’s not my real father.”
Marquardt describes AI and other reproductive technologies as presenting us with a competition between the rights of adults and the needs of children. Is there any question which is winning?
And what do the missing men—the donor/fathers—make of all this? Sperm bankers like to describe anonymous donors (who in reality are sperm sellers, it’s important to remember) as altruists, and many of these men probably do believe that they’re doing good deeds. But they’re a little like the socialist who loves humanity but hates individual people. The donors are willing to perform acts of charity for women they’ve never met. But they don’t want anything to do with what we used to call their own flesh and blood.
Ultimately, AI reinforces the worst that women fear in men. Think of all the complaints you hear: men can’t commit, they’re irresponsible, they’re insensitive, they don’t take care of the kids. By going to a sperm bank, women are unwittingly paying men to be exactly what they object to. Many donors are college students—some sperm banks accept donors as young as 18—responding to ads like the Fairfax Cryobank’s: “Why not do it for money?” Sperm-bank officials say that many donors are married men who neglect to mention to their wives what they’re up to. Plotz tracks down a number of the Nobel bank’s donors and finds a motley crew of coldhearted rationalists, losers, and egotists—often serial donors he calls “the Inseminators.” One is a sociopathic seducer with so many children, through girlfriends and sperm donation, that Plotz will only refer to the total number as “X.” It appears to be higher than 50, the total ascribed to another sorry case, who, otherwise basically jobless, made masturbating his life’s work over the course of 15 years.
Katrina Clark eventually found her father, but he’s no candidate for Donor of the Year, either. “I’m tired of this whole sperm-donor thing,” he tells her after several meetings. The young woman tries to put a good face on their encounter: “Now that he knows I exist, I’m okay if he doesn’t care for me in the same way [that I care about him]. But I hope he at least thinks of me sometimes.” There are many words to describe the father Katrina Clark finally discovered, but “altruistic” isn’t one of them.
But why expect anything different? The very premise of AI is that, apart from their liquid DNA, we can will men out of children’s lives. Insofar as their Y chromosome is significant, they are completely interchangeable with other “male role models.” To produce and rear the next generation, women are still a vital presence—at least until artificial wombs become part of the artificial-reproduction toolbox. But men?
Plotz meets only one donor who shows any feeling for the children he has produced. “This was what happened when a deliberate man with a pure soul became a sperm donor,” he writes. “He had tracked his children because he felt he must.” A known donor—partly because he’s unlikely to agree to produce 20 or 30 children—is likelier to become attached to his kids, even if he thought he was just helping out a friend or if the initial contract had it that he was supposed to remain a relative stranger.
Recognizing that it’s probably not a good idea for society to erect a wall between children and their fathers—and perhaps also not a good idea to encourage men to disown their kids—several Western countries have banned anonymous donation. Canada has made it illegal to pay someone for sperm. In Switzerland, the Netherlands, Sweden, and now Britain, donors must agree to be identified to their children once they reach 18. Unsurprisingly, the donor pool is drying up fast in some of these locales. Even countries with liberal laws on same-sex relationships, such as France, Iceland, and Norway, have banned AI (and, in some cases, adoption) for gays and singles. The contradiction is only superficial, a consequence of the way that we frame family making as primarily about adult rights and “intentionality.” What these European laws suggest is that you can support gay relationships, yet still think that it’s best for kids to grow up with a mother and father, preferably their own.
It would be a good idea for Americans likewise to abolish anonymous sperm donation. But let’s not kid ourselves that such a ban would also put an end either to fatherlessness or to male fecklessness, both nourished by our cultural predilection for individual choice unconstrained by tradition, the needs of children, or nature itself. To modify that preference, we’ll need something much more radical than government regulation.
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