But need it or not, here’s yet another story that offers a glimpse of some of the complex issues that lie beneath current practices and any changes.  It appears there is a sperm bank–Xytex–that (wittingly or not–and we’ll come back to this momentarily) provided sperm to a number of women that was not as advertised.   It came from James Christian Aggeles.   Aggeles lied to Xytex about his educational background and, to my mind far more importantly, his mental health history.   While Aggeles had been diagnosed with schizophrenia and narcisissitic personality disorder, he omitted this information.   His sperm was used to create over 30 children, including 7 in Canada.

Now clearly Aggeles did plenty that was wrong.  But did Xytex?  And if so, what?   If you read carefully, you can see that the allegation is that Xytex essentially encouraged Aggeles to falsify educational credentials, telling him that sperm from those highly educated sells better.  (While at this point I have no idea if this actually happened, I cannot think of any legitimate reason for a sperm bank to tell a prospective provider this.  It can only encourage resume padding (or worse).) More concretely, it’s alleged that Xytex “created” his IQ.   Again, at this stage there’s no way to know if this happened, but if it did, it’s surely indefensible.

And then there is this:   What I take from the story is that Xytex (quite carelessly) disclosed Aggeles’ identity to some of the women who had received his sperm.   Those women “went to work” (that’s taken from the news story) and unearthed information about Aggeles.   Of course, if they could do it, so could Xytex.  But one assumes that Xytex didn’t.  (If Xytex did and then went with information it knew was false, that’s even worse.)   Should they have?

I don’t find this a hard question, personally.  If you are going to allow anonymous sperm donation, then people must rely on the sperm banks themselves to do screening.    (If providers are known then you might ask the recipients to do their own Google searches.)   Screening should be more than just asking questions and writing down whatever the provider says.  While some information would be difficult to check, some is pretty easy.   I think, for instance, if a person says “I have a degree from this institution” you can check and see if the institution has a record of it.   It’s not something the institution keeps confidential.   And if some information doesn’t check out, surely there is some reason to worry–and maybe the bank doesn’t take that provider?  Or maybe they put a warning on it that the bank knows the information is unreliable.  (I have to say, I cannot imagine who would use sperm from such a provider, so I think most likely the provider is rejected.)

If you don’t impose some sort of obligation to at least make best efforts to confirm information, then at least some sperm banks will tend to be overly trusting.  After all, it isn’t in the bank’s interest to reject a potential donor who has impressive credentials, because they can sell that sperm most easily.  Which leads us back to the for-profit thing.   A sperm bank that is in it for the profit–and purely for the profit–may have an incentive to overlook inconsistencies on order to have more product available.

Now I’m not saying this is true of all sperm banks–clearly it is not.  And I’m not even saying it is true of most.   But it is, I’m afraid, true of some.   And those–even if they are few–can do a lot of harm.  So it seems to me realigning incentives is sensible.  Imposing liability here–for not checking what they could have checked, say–would change the equation.   It would make it worth your while to screen, even as it is the right thing to do.

It’s only fair to note that another consequence of this would be to raise the cost of sperm–because checking will cost something and that cost will be passed along.   But reforms often cost money.  I think, in this instance, the trade-off is worth it.  (There is something else to think about a little, though–would the higher cost drive more people to the Craig’s-list model, which is even less well-regulated?   It might.  And that’s more food for thought.)

For many years now (Could it be 25?) New York families–and particularly New York lesbian families–have had to organize their lives around a narrow and inflexible view of who counts as a legal parent.  That was the result of an (in)famous case known as Alison D. v. Virginia M.    I’ve written about it many times in the past as you can see from this link.

Alison D dealt with a situation which is regrettably common:  A lesbian couple decides to have a child together.  One woman (call her “D” gets pregnant and gives birth.  As planned, they parent the child together.  At some point the women split up and, using the law, the woman who gives birth (that’s D, remember?)  attempts to excise her former partner (let’s call her P) from the child’s life.  This even though P is the child’s psychological/social parent.

The law as constituted for most of the 20th century generally made this pretty easy for D.   D was a legal parent–by virtue of having given birth.  P had no legal status vis-a-vis the child.  She wasn’t married  to the D (because no state allowed two women to marry), which is how many men gain parental status.   She couldn’t prove genetic connection (unless the women had gone the extraordinary and expensive route of having D provide the egg).  And other legal avenues available to unmarried male partners didn’t work for her.

While I cannot say that the actual number of cases where this happened is immense, the possibility hung like a dark cloud over lesbian families.  And determined lawyers came up with a couple of protections/solutions.  First, well in advance of any trouble, perhaps D could adopt the child, without disturbing P’s parental rights.  Then the child would have two legal parents and in the event the relationship between the adults deteriorated, all would be well.   This form of adoption, called a “second-parent adoption,” came to be available in a number of places, but by no means everywhere.   (You can read a lot about that on the older part of the blog if you use the tags.)

Second-parent adoptions are a fine solution–for those who do them.  But that last qualification tells a tale.  Lots of couples don’t do them.  There’s a million reasons why you might not–ranging from the simple truth of procrastination to not even knowing you need to and everything in between.   So what if you don’t and then there’s that split up?  What could P do?

P could claim to be a parent by virtue of having lived as one, of having played that role in the child’s life.   She could claim to be a “de facto” parent–basically a legal parent by virtue of the specific facts.    This was an argument that, over time, proved to be successful in many places (my own state of Washington among them).  But not in NY.   Alison D was the case in which the New York Court of Appeals (That’s the highest court in NY State.) said “no.”   And this left many women–Alison D among them–without any access to the children they had raised.

I won’t review Alison D here.  (You can follow that earlier link if you want, or we can talk about it in the comments.)  suffice it to say that Alison D was overruled last week, in a new case (that might be called Brooke S. v. Elizabeth A.)  Here’s the opinion or, if you prefer, some news coverage and an editorial.

There’s actually a bunch to say about the new opinion, but I will content myself for the moment with one main point.   While Brooke S overrules Alison D–quite explicitly–it is not a de facto parent case.  Indeed, the court clearly declines to adopt a de facto or functional standard.  Instead, the court relies on the fact that the women here entered into an agreement to create this child.  Now I think that the fact that the women  carried through on the agreement is important, but I’m not sure about that, give this quote (from 24-25 in the opinion.)

Petitioners in the two cases before us have alleged that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents. We hold that these allegations, if proven by clear and convincing evidence, aresufficient to establish standing.

But then I picked up my morning paper (The Seattle Times) which had this article–originally from the New York Times and I’ve linked to that as well.   In a way it tells us nothing we didn’t already know–or could have known if we’d thought about it.  The easy and affordability of DNA testing makes it possible for adoptees to find their birth parents.   (I’m using the term birth parents here because I think it has a pretty well-established meaning, but as earlier posts demonstrate, I’m wary of the sloppiness of language and this term does make me a little uneasy.  But I’ll unpack that another time.)   Given enough time and enough testing, remaining anonymous simply isn’t possible anymore–whether for birth parents or for gamete providers.    (Of course, the enough time/enough testing qualification suggests there may be some significant barriers.)

But even though I might say I knew all this, I think the article is interesting.  That’s really because the statement above about what DNA testing makes possible, while true, is not anchored in any context.  The article is anchored in a very specific context.   And context matters a great deal to me. 

The context here is Korean adoptees.   Many children were adopted out of Korea over the decades, into homes throughout the world, but often in Western Europe or the US.   Many of these children were adopted into white families and so have always known they were adopted.  Surely many if not all of these children wondered about their families of origin.  But for many years that must have seemed a nearly impossible question.   South Korean law blocks the release of information to the adopted child without the birth parents consent.   And since, as the article recounts, there is stigma surrounding  placing a child for adoption, that consent seems to be but infrequently forthcoming.   It’s not an unfamiliar story, in a general way, but it is one that is shaped in specific ways by cultural norms.

But now there’s DNA testing.   Now it’s not a perfect answer, because the same social forces that prevent birth parents from granting access to birth records may prevent them from providing DNA for testing.  This does seem to be the case–the number of parents providing samples is far lower than the number of children.   But the arrival of DNA testing is still important.   There may well be people more willing to give a cheek swab than they are to reopen their connection to an adoption agency.   And beyond that, as DNA testing becomes more prevalent for more reasons, it may be that more DNA samples are available for matching.   (Yes, there are privacy issues here.)

DNA testing can also help even if parents themselves are not tested.   There’s a great blog on donor conception called “Olivia’s View.”  She recently wrote about DNA testing, albeit in a different context.   Even if a parent does not provide a sample–even if a parent has died–matches may be made through siblings or other children.   It’s not that DNA testing will provide the immediate answer to all the questions Korean adoptees must have, but it is an avenue that holds a lot of promise.

I wonder, too, if the availability of DNA testing will change the shape of the debate.   Could it help undermine the social forces that make birth parents less willing to identify themselves?   I think perhaps it might.   I suppose we’ll see.

The commentary is by Jenn Morson who has a life history similar to Biles’ in at least one important way:   She was raised by parents who were not her genetic parents.   And so, like Biles, she and her parents endured questions about whether their relationship was “real.”    While it’s generally in line with the points I was trying to make in the earlier post, I think she adds a good deal to it because she writes from her own experience.

It’s also made me think a bit more about how to describe the question that lie at the heart of these encounters.   Perhaps what is at stake here is what “parent” in its unmodified form means?    I think everyone would agree with the statement “Simone Biles is being raised by adoptive parents who are not genetic parents.”  Where trouble begins is when you ask “Who are her parents?”  or “Are these people her parents?”  These formulations leave us to fill in our own modifier.  And if you default to “genetic parents” then the grandparents are not parents, while if you default to the meaning Morson uses, then the grandparents are parents.

Does it matter what we mean when we use the unmodified “parent?”  I think it does.   In most common usage, language is not so precise.   We don’t always use the modifiers.   So the fight shifts to who gets to claim the unmodified parent–who is a parent in the most usage?

In the end I think this is about more than language.   I’m pretty sure that the language in common use shapes how we think.   So while I want to continue to use the modifiers for clarity, I don’t want to lose sight of the importance of the unmodified parent.