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Harmonizing the Legal Treatment of Semen Myrisha S College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2013 Sex and Statutory Uniformity: Harmonizing the Legal Treatment of Semen Myrisha S. Lewis William & Mary Law School, [email protected] Repository Citation Lewis, Myrisha S., "Sex and Statutory Uniformity: Harmonizing the Legal Treatment of Semen" (2013). Faculty Publications. 1920. https://scholarship.law.wm.edu/facpubs/1920 Copyright c 2013 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs SEX AND STATUTORY UNIFORMITY: HARMONIZING THE LEGAL TREATMENT OF SEMEN Myrisha S. Lewis* I. INTRODUCTION ................................. 236 A. Product ............................ ..... 241 B. Method of Transmission/Distribution ...... ...... 242 II. SEXUALLY TRANSMITTED DISEASES DUE TO SEXUAL CONTACT. ........................... 245 III. SEXUALLY TRANSMITTED DISEASES DUE TO ASSISTED REPRODUCTIVE TECHNOLOGY ............... 251 IV. MODEL STATUTE IN THE SEXUALLY TRANSMITTED DISEASE CONTEXT..... ............. 251 V. LEFTOVER EMBRYOS DUE TO ASSISTED REPRODUCTIVE TECHNOLOGY ................ 253 A. Frozen Embryo Disposition ............. ...... 254 B. Model Statute Governing Frozen Embryo Disposition .......................... ..... 261 VI. CHILD SUPPORT LIABILITY AS A RESULT OF SEX ..... 264 A. Child Support Overview ................ ..... 264 B. Contraceptive Fraud, Sexual Assault, and Statutory Rape in the Context of Parentage .............. 267 1. Contraceptive Fraud.....................268 2. Brief Legal History and Stereotypes ..... ..... 269 3. Biology ................................... 271 4. The Right Not to Procreate Simply Not Infringed Upon.........................272 5. Attempts to Escape Child Support Liability ......... 273 6. "But for" Causation Ruined by Birth Control Ineffectiveness and Medical Privacy ..... ..... 276 7. Evidentiary Issues .................. ..... 277 * The views represented in this article are solely my own and do not represent those of any employer. I would like to thank Carol Sanger and Calicia Lewis for their help on my article throughout the process. 235 CHARLESTON LAW REVIEW [Volume 7 8. Individualism and State Action .................... 278 C. Sexual Assault ....................... ..... 280 D. Statutory Rape ...................... ...... 283 1. Transfers ........................ ...... 286 2. Treatment of Female Statutory Rape Victims as Precedent for the Elimination of Support Obligations ...................... ...... 288 E. Model Statute Addressing Involuntary Reproduction.......................289 VII. CHILD SUPPORT LIABILITY FOR ANONYMOUS DONATION OF SPERM ................... ..... 290 A. Liability for Husbands Whose Wives are Artificially Inseminated by Anonymous Donors.........292 VIII. CHILD SUPPORT LIABILITY FOR KNOWN SPERM DONORS ................................... 295 A. Overview of State Statutes ............. ...... 296 B. Fraud in Known Donor Artificial Inseminations ....... 297 C. Model Statute Governing Childbirth as a Result of Artificial Insemination......................298 IX. CONCLUSION .................................. 301 I. INTRODUCTION A teaspoonful of semen and a few minutes are all that are required for the creation of a child or the transmission of a sexually transmitted disease.' In addition to sexual intercourse (sex), assisted reproductive technology2 is also available as a method of conception and possible disease transmission. Sex, 1. See Sarah Litvinoff, The Sperm Bandits, INDEPENDENT, Nov. 29, 1998, http://www.independent.co.uk/life-style/the-sperm-bandits-1188003.html ("A teaspoonful of liquid has once again found itself at the centre of a courtroom battle."). 2. Assisted Reproductive Technology (ART), CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/art/ (last updated Aug. 1, 2012) [hereinafter Assisted Reproductive Technology (ART)]. ("Assisted reproductive technology.. .includes "procedures [that] involve surgically removing eggs from a woman's ovaries, combining them with sperm in the laboratory, and returning them to the woman's body [as embryos] or donating them to another woman."); see infra note 31. 236 2012-20131 Sex and Statutory Uniformity assisted reproductive technology, and their results face non- uniform legal treatment. This Article will address, analyze, and propose solutions to the many incongruous treatments of sex- related and assisted reproductive technology-related consequences in family law. For example, privacy and autonomy give way to public health concerns when a state court compensates a plaintiff for the unwanted transmission of a sexually transmitted disease-, but state courts state that they are guided by these same concepts of privacy and autonomy when they reject contraceptive fraud claims4 and the requests of other males for the abatement of child support when both unwanted sexually transmitted diseases and unwanted children are generally "transmitted" through the same act-unprotected sex.5 Similarly, anonymous donors of eggs and sperm are legislatively exempt from child support obligations, whereas courts deem male requests to be compensated for contraceptive fraud as an attempt to escape a fatherly obligation even though either of the biological parents could finance that obligation.6 State court decisions, such as these, are not based on a desire to provide "adequate support" for the child but instead based on cultural stereotypes which focus on the outdated nuclear family, and attempt to sustain the male role of "provider" for the family, no matter the context.7 Thus, the law inconsistently treats anonymous donors of eggs or sperm and those who have produced children through sex, whether voluntarily or involuntarily. This inconsistency also exists in the reproductive market, a market which effectively ends upon fertilization.8 The first commercial sperm bank in the 3. See Kathleen K. v. Robert B., 198 Cal. Rptr. 273, 276 (Ct. App. 1984); Stephen K. v. Roni L., 164 Cal. Rptr. 618, 620 (Ct. App. 1980). 4. See Behr v. Redmond, 123 Cal. Rptr. 3d 97, 116 (Ct. App. 2011) discussed infra at 60-64 and in accompanying text. 5. See Barbara A. v. John G., 193 Cal. Rptr. 422, 431 (Ct. App. 1983); see also infra note 53. 6. See infra note 236. 7. See infra note 168. 8. For a discussion of child support, see infra notes 123-130 and accompanying text. 237 CHARLESTON LAW REVIEW [Volume 7 United States opened in 1970.9 Now, sperm and eggs are available from donors who are compensated at rates that range from $60-$75 for sperm donationo (and up to $100 for men with graduate degreesi) to $8,000 per egg donation to university hospitals12 and even up to $100,000 for the eggs of well-educated women.13 Vials of sperm sell for $250-$400 each, and eggs generally sell for $4,500.14 Thus, eggs and sperm are assets at the time they leave their producer, but once they enter another's body through sex, the eggs and sperm are no longer an assets to the producer; rather, they become a liability to the producer, as indicated by the imposition of child support obligations.15 The market ends upon fertilization because market-based structures cede to the "best interests of the child" standard- which mandates child support.16 However, as this Article will 9. DEBORA L. SPAR, THE BABY BUSINESS: How MONEY, SCIENCE, AND POLITICS DRIVE THE COMMERCE OF CONCEPTION 35 (2006). 10. See Martha M. Ertman, What's Wrong with a Parenthood Market? A New and Improved Theory of Commodification, 82 N.C. L. REV. 1, 14 (2003) (stating that sperm donors are compensated at $60 per donation); see also SPAR, supra note 9, at 39 ("[Donors] contribute a fixed number of times over a relatively short period and receive around $75 per specimen."). 11. Jennifer Adaeze Anyaegbunam, Ivy League Women Get Offers for Their Eggs, CNN HEALTH (Aug. 12, 2009, 10:49AM), http://thechart.blogs.cnn. com/2009/08/12/ivy-league-women-get-offers-for-their-eggs/. 12. Weill Med. Coll. of Cornell Univ., Compensation, EGG DONATION, http://www.eggdonorcornell.com/why-donate/compensation.html (last visited Oct. 5, 2012); see also Egg Donor Compensation, N.Y.U. LANGONE MED. CTR., http://www. nyueggdonor.org/egg-donor-compensation (last visited Oct. 5, 2012) ("Donors who complete a successful donation . will receive $8,000 as compensation for your time, effort and inconvenience, which is paid by the NYU School of Medicine."). 13. Anyaegbunam, supra note 11 (noting that some agencies pay well over the prices recommended by the American Society for Reproductive Medicine in order to target females attending certain ivy league schools). 14. SPAR, supra note 9, at 39. The typical cost of sperm is $300 and the typical cost of eggs is $4,500. Id. at 213. 15. For a discussion of child support, see infra notes 129-32 and accompanying text. See also infra notes 230-235 and accompanying text for a discussion of the absolution of child support liability for anonymous sperm donors. 16. See CHILD WELFARE INFO. GATEWAY, DETERMINING THE BEST INTERESTS OF THE CHILD: SUMMARY OF STATE LAWS 1 (2010), available at http://www.childwelfare.gov/systemwide/laws-policies/statutes/best-interest.pdf 238 2012-2013] Sex and Statutory Uniformity show, the best interests of the child standard is ignored by artificial insemination statutes, which allow all anonymous donors, and some known donors, to escape child support liability.17 In spite of the negative circumstances that can surround the creation of a child-fraud,
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