Family Law

Woman Wins Right To Use Donor Sperm Over Spouse’s Objection

We are in for more and more complex cases in parentage thanks to assisted reproductive technology and evolving forms of family.

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There’s a lot of talk these days about reproductive rights, and how much a person’s voice “counts” in the public debate on hot-button issues, depending on their sex. For instance, some argue that men ought to stay away from the debate over how and when women can exercise the ability to terminate a pregnancy. While that debate will carry on indefinitely without resolution because democracy, I hope we can reach consensus on a different reproductive topic: it’s time for those men who are in the middle of divorcing their spouses to stop controlling whether their soon-to-be ex can use assisted reproductive technology to conceive a child totally unrelated to the man. Uncontroversial, right?!

Well, in Australia, the fight had to go all the way to court. But fortunately, we recently saw a victory for a Melbourne woman in Victoria, Australia. The woman was 45 years old, still technically married to her estranged husband, and had to fight a law that required that her husband to consent to any use of a sperm donor by a spouse for conception. Like a jerk, her estranged husband refused to sign the required consent forms. Of course, a finalized divorce would have solved the problem, but a divorce takes time.

But in order to qualify for a divorce under Victorian law, a couple must live separately and apart for a minimum of 12 months. Not only is a woman’s biological clock ticking swiftly at the age of 45, but the delay meant that there was no way to finalize a divorce before the woman reached a milestone birthday for reproductive purposes — 46. Yes, you knew you could vote at 18 and even drink at 18 in Australia, but who knew that 46 was also a big birthday. That’s because the relevant clinic guidelines insisted that a person should attempt conception prior to turning 46. So waiting 12 months just to qualify for a divorce was a non-starter.

Fortunately for the woman, the judge found that the consent requirement of the Australian Assisted Reproductive Treatment Act (AARTA) discriminated against the woman on the grounds of her marital status. Her attorneys argued that AARTA violated Victoria’s Charter of Human Rights and certain Australian federal sex discrimination laws. The judge agreed, ruling in favor of the woman on both grounds, and noting that Victoria’s Chart of Human Rights promises that every person has a right “to enjoy his or her human rights without discrimination.” That ruling seems to imply a broad applicability, since theoretically, a married man could enlist an egg donor and a surrogate without the consent of his wife — or similar hypotheticals with two married women, or two married men — and we could have this problem in multiple different directions.

In any event, in good news for the soon-to-be ex (after those 12 months expire!), the ruling made it clear that he would not have obligations or responsibilities as to any child conceived by his wife with donated sperm without his consent. That’s good, because it means everyone can have a fresh start, far away from each other.

Of course, the Victorian law would have made more sense and been more in line with many U.S. state-specific assisted reproductive technology laws if it had merely stated that the spouse would not be a legal parent unless he consented to the procedure. That way no one is ever stopped from engaging in reproduction without the consent of a hostile spouse.  And frankly, if you are set on having a child but you’re spouse refuses to consent, your marriage is probably not headed in the right direction anyway.

In the U.S., we generally see these cases, not where a spouse is trying to prevent an ex-to-be from using donor gametes, but where the spouse does not want to be ruled to be a legal parent to the resulting child.  Of course, in the brave new world of 2018, the science of assisted reproductive technology means that a child can have three or four or six parents.

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So buckle your seatbelts. We are in for more and more complex cases in parentage thanks to assisted reproductive technology and evolving forms of family. It is to be expected. Families can be formed in so many ways that don’t fall into the traditional nuclear family box. It’s just a matter of time until the law adjusts. And then falls behind again.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].

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