Chapter 7.D.2 (or 5.D.2) -- Gamete Donation


Notes: Gamete Donation


Note 1.  Gamete Donation.


See also, Ferguson v. McKiernan, 855 A.2d 121 (Pa. Super.  2004) (oral agreement to donate sperm insufficient to eliminate paternal obligation to pay child support).


Note 2. Difficulties in the Application of the 1973 UPA Approach


The Pennsylvania Supreme Court has granted an appeal in a complex case involving a donor whose sperm was used for in vitro fertilization. Among other things, the decision may directly confront the possible conflict between the treatment of sperm donors and the usual rule providing that parents cannot bargain away the support rights of their children. See Ferguson v. McKiernan, 855 A.2d 121 (Pa. Super. 2004), appeal granted in part, 868 A.2d 378 (Pa. 2005) (the court will hear arguments on the issues of: public policy with respect to bargaining away legal rights of children and constitutionality of enforcing paternity of children produced from sperm donation, and estoppel of pre-conception paternity agreements).


Note 2 also includes a brief discussion of the implications of reproductive technologies for nontraditional families. The California Supreme Court issued a trilogy of rulings on this topic in August 2005.  See, Kristine H. v. Lisa R., 117 P.3d 690 (Cal. 2005) (woman considered co-mother of child born to her partner through artificial insemination; parties had sought stipulated judgment declaring both women the mother of the child before its birth; birth mother estopped from contesting maternity of her former partner); K.M. v. E.G., 117 P.3d 673 (Cal. 2005) (woman who provided ova to her female partner for in vitro fertilization is a parent of the children born through this arrangement along with the birth mother); Elisa B. v. The Superior Court of El Dorado County, 117 P.3d 660 (Cal. 2005) (“woman who agreed to raise children with her lesbian partner, supported her partner’s artificial insemination using an anonymous donor, and received the resulting two children into her home and held them out as her own, is the children’s parent”). For reactions, see Adam Liptak, California Ruling Expands Same-Sex Parental Rights, The New York Times, August 23, 2005, A10, col. 1.


Note 4. Tort and Criminal Liability.


For an analysis of a British case involving a mistake in the use of sperm in artificial reproduction, see Cynthia R. Mabry, “Who Is My Real Father? The Delicate Task of Identifying a Father and Parenting Children Created from an In Vitro Mix-Up, 18 Nat’l Black L.J. 1 (2004-2005).  

Should sperm banks be held liable for the negligent destruction of donated sperm? How would you measure the damages?  See, Shirley English, Patients to Sue over Damaged Sperm, The Times (London), Dec. 15, 2005, at 8.


Note 5. Posthumous Reproduction


Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004) (posthumously conceived children were “children” under Social Security Act and were presumed dependent on deceased for purposes of entitlement to child’s insurance benefits).


See Sharona Hoffman & Andress P. Morriss, Birth After Death: Perpetuities and The New Reproductive Technologies, 38 Ga. L. Rev. 575 (2004); Michael K. Elliott, Tales of Parenthood from the Crypt: The Predicament of the Posthumously Conceived Child, 39 Real Prop. Prob. & Tr. J. 47 (2004).


NEW NOTE 6. International Developments


In 2004, Italy enacted legislation banning the use of donated sperm and eggs and restricting the use and methods of in vitro fertilization. See, Fabio Turone, Italy to pass new law on assisted reproduction, 328 BMJ 9 (2004). Tough law on fertility treatments approved by Italian lawmakers

(March 4, 2004), available at (last visited July 20, 2006). For commentary on the

legislation, see John A. Robertson, Protecting Embryos and Burdening Women: Assisted Reproduction in Italy, 19 Human Repro. 1693 (2004). An effort to change the legislation by referendum failed in 2005. Ian Fisher, Italian Vote to Ease Fertility Law Fails for Want of Voters, The New York Times, June 14, 2005, at A11, col. 1.


In March 2004, Canada enacted the Assisted Human Reproduction Act. One major purpose of the Act is to prevent the commercialization of reproductive technologies. Thus, the Act prohibits payment for sperm or egg donors. Critics argue that the decommercialization will reduce the supplies of sperm and eggs available for use. Canada is establishing a new Agency to administer the Act. The legislation can be found at (last visited July 20, 2006).