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In a sperm mix-up, who gets to be called dad?
Publication Date : 28-06-2012
Suppose you went to a fertility clinic with your wife to try for a baby by in-vitro fertilisation (IVF). Your sperm was meant to be used to fertilise her eggs and the resulting embryos to be implanted into her womb.
Sadly, its overworked lab personnel re-used inadequately washed pipettes so that your sperm ended up fertilising the eggs of another woman, who later delivers a baby. Do you have parental rights to her baby?
An inter-agency group is looking into legislation that will clarify such issues thrown up by artificial reproduction technologies. In general, when non-spousal donor sperm is used in Singapore, the donor is not legally regarded as the natural father of a child thus conceived. That is, non-spousal sperm donors have no parental rights or responsibilities.
Both public and private sperm banks here require non-spousal donors to sign away the right to pursue the identity of any children born from their sperm.
In our hypothetical case, many might intuitively assume you do own your sperm, so you ought to have some parental rights by default. However, in common law, there are generally no property rights in body parts.
Still, in an appellate case in England - there is no precedent in Singapore - some patients froze their sperm for future use as cancer therapy might render them sterile. The court ruled that they had property rights to their sperm despite the general position that there are no property rights in body parts.
If sperm is property, then the intentions of its provider as its owner must control the way it is used. If he meant for a specific woman - his wife, say - to use his sperm for procreative purposes, then she could use it, or she could choose to not use it.
But even she may not sell or give it away or have it destroyed as any such disposition would hurt the owner's intentions. The doctor certainly may not use it for some other woman.
Calling sperm property would appear to make dispute resolution more uniform and predictable. Supposing a sperm bank loses or destroys the frozen sperm of a man rendered infertile by cancer therapy. He would then get damages assessed according to its fair market value as property.
But the anonymous sperm donor here collects only about S$100 (US$78), which is actually a travel allowance disbursed only half a year after donation - if the sperm is usable. This quantum would not compensate such a cancer patient whose sperm is irreplaceable.
In fact, the sperm has no market value at all in Singapore, where gametes may not be sold. Rather, it has a priceless, intrinsic value to the man because it was the only means he had of having offspring of his own. So sperm is something more than just personal property.
Moreover, if sperm were merely property and the man died, then it would be divided in ways which may lead to outcomes he would not have approved of. Supposing a wealthy widower with two grown children dies after his second marriage, willing a third of everything to each child and his new wife. Say that among his estate are 15 vials of his frozen sperm. As mere property, she gets only five vials of it whereas the two adult children get 10 vials, which they might destroy, thwarting their father's wishes of having offspring with his young wife.
That wish, in fact, is a fundamental right to procreate, so treating sperm as property may lead to infringement on that right.
So on closer examination, the intuition and the English precedent that sperm is property both seem mistaken. In fact, biology suggests it is more than 'property' though less than 'person'.
This will become more obvious by analogy with the pre-embryo, that four-to-eight cell entity formed after a sperm fertilises an egg. The pre-embryo differs from the embryo because each of its eight cells is undifferentiated and can still separate out to develop into an identical twin. Only after the eight-cell stage when it is an embryo can it implant itself into the walls of the mother's womb and its cells begin to differentiate.
Up to the eight-cell stage, the pre-embryo's cells are undifferentiated, so the entity can still become more than one individual. Since a pre-embryo is not for sure a single individual yet, unlike the embryo, it cannot be said to have personhood. But it does have the capacity to become a person or persons, so it is more than mere human tissue. Thus, while the frozen pre-embryo is not a person yet, it is more than mere property. It is betwixt and between, thus deserving of special protection.
Likewise frozen sperm, which precedes even the pre-embryo in this chain of causation of personhood. As a fully formed cell, the sperm does not differentiate any further. It merely produces the materials needed to fertilise an egg. In its brief life, a sperm cell has only a small window of opportunity, if ever, to fertilise an egg. If it does not, it dies after a few hours. But while it cannot, by itself, become a person, no persons can come about without sperm.
Thus, unlike other cells, the sperm (and egg) can lead to a whole life, which makes it property - and then some. It has a special status somewhere between property and person.
If so, the husband whose sperm is employed erroneously for another woman should, by default, have some parental rights in the baby it leads to. He certainly may give up those rights but justice requires that he not be denied if he so desires them.