Donor paternity (400 children)
Luis Arechederra.
Full Professor from Civil Law.
Published in La Ley. Year XXVI. issue 6270. Wednesday, June 8, 2005, p.141.
The Resolution of the General Administrationof the Registers and Notaries of 24 April 1997 dealt with the case of resourcebrought by an unmarried woman who, artificially fertilised with sperm from an anonymous donor, gave birth to a beautiful baby girl whom she registered in the Civil Register as her own daughter, requesting, at the same time, that the space relating to the "father" be left blank. The judge in charge of the Civil Register opposed the mother's request, arguing that the space should be filled in, even if it was only for identification purposes, with a fictitious name, since no one could appear in the Civil Register as the child of anyone else (in this case, without a male parent)2. On the other hand, nothing prevented the registered child from requesting the deletion of the father's accredited specializationwhen he reached the age of majority, as specified in article191 of the Civil Register Regulations. This precept should not be considered outdated, as its current essay-R.D. of 21 May 1993- is subsequent to Law 35/1988, of 11 November, "on assisted reproduction techniques". Leaving the space relating to the father blank is tantamount to leaving a hint about the artificial nature of the pregnancy, something that the aforementioned Law prohibits. The General Administrationrejected the mother's resourceand confirmed the decision of the judge in charge of the Civil Registry.
The same solution was adopted by the General Administrationin the case in which a single mother who had given birth by the "traditional method" claimed that no one should appear as the father on the registrationof the birth of her child (see Resolution of the D.G.R.N. of 12 January 2004).
However, statusis not the same. The child conceived by the "traditional method" was conceived with the joyful cooperation of a man with a name and surname. In the case of the artificially conceived child, there was no sexual intercourse with a man. Therefore, in the registrationof the birth of a child conceived according to the "traditional method", the one who really was the father could be recorded as the father. If he is not listed, it is because of difficulties that have arisen, not because of an absolute impossibility for the father to be listed. In the case of assisted fertilisation with donor sperm, it is not possible for the name of the father to appear on the birth certificate registration, for the simple reason that there has not been sexual intercourse between the mother and a male3. This male progenitor does not exist. It is possible to find out the name of the male who made the donation. But equating donor with progenitor is nonsense. There was no relationship between the donor and the mother. It is therefore not illogical for the mother to want the space for the father to be left blank. Indeed, in principle it should be left blank, because the civil registry should not reflect glaring inaccuracies. It is a different matter if, for identification purposes only, the space for the father is filled in with an assumed name in order not to harm the child. But, just as in the case of conception according to the "traditional method" the assumed name hides a real father, in the case of assisted fertilisation the assumed name does not hide the father. That is to say, in the first case, the mother could provide the name of the father, but not oblige him to appear as such, except in the case of a court ruling. On the other hand, in the second case - assisted reproduction - the mother cannot provide the name of someone who has not had a potentially procreative relationship with her. Unknown is not the same as non-existent4. The reason given by the unmarried woman who is artificially inseminated is different, and of greater weight, than that given by the unmarried woman who gives birth by the "traditional method".
For all these reasons, I have never understood the controversy about the possible unconstitutionality of the Law on Assisted Reproduction Techniques of 22 November 19885. I am referring to the possible collision of the secret nature of the sperm donation with the constitutional principle, stated in article39.2 of the Constitution, according to which "the law shall make possible the researchof paternity". At first, I did not understand what those who blamed this flaw in the law on assisted reproduction were referring to. I was embarrassed that I could not follow the controversy among my colleagues. I was relieved when I found the problem at core topic: for them, the donor was the father. As the donation is secret, the child is prevented from finding out who the father is. Relief was followed by astonishment: how was it possible that my colleagues considered the donor to be the progenitor and therefore the father?
I shall begin with the charge of unconstitutionality attributed to the aforementioned Law. The Constitutional Court, in its judgement of 17 June 1999, states, in my opinion rigorously, the following: "It should not be forgotten, as a starting point, that the action of claiming or researchof paternity is aimed at constituting, between the subjects concerned, a legal bond comprising reciprocal rights and obligations, part of the so-called paternal-filial relationship, so that the revelation of the identity of the progenitor through artificial procreation techniques is not in any way aimed at the constitution of such a legal bond, but to a mere identification of the donor of the gametes that are the origin of the generation, which places the possible claim, with this specific and limited scope, in a different sphere to that of the investigative action that arises from the provisions of the last clause of article39.2 of the Constitution".
The Constitutional Court distinguishes paternity as the configuration of a paternal-filial relationship from the merely biological relationship between the donor and the child born through assisted reproduction techniques. Here something of great importance seems to be clarified, which is the following: even if you identify the donor, you will not find out who the father is. Because the law does not consider the paternal-filial link averagebetween the donor and the child born through assisted reproduction techniques using the gametes provided by the donor to be a paternal-filial link. Therefore, the anonymous character of the donor is not an obstacle for the free researchof paternity. The difficulty in successfully exercising the paternity claim derives from something more elementary and obvious: the father does not exist. Therefore, do not look for what does not exist. Therefore, the law does not violate the principle enshrined in article39.2 of the Constitution. His search has no end, and that is not unconstitutional, it is simply regrettable6.
To this we must add something that the civilists did not consider, nor did the Constitutional Court mention. The donor cannot claim extramarital paternity of the child born as a consequence of the use of the sperm he donated. In other words, the donor lacks active and passive standing in the action to claim extramarital paternal filiation. Neither can paternity be attributed to him (in my opinion non-existent) nor can he claim it. Therefore, the legal treatment is entirely consistent. The Constitutional Court correctly resolved this issue, although it could have gone further in its reasoning. Even now that the Court has declared the unconstitutionality of the first paragraph of article133 and has asked the legislature for a broader essayof the legitimacy of the male to claim extramarital paternity, no one thinks that such a broadening of entranceto the donor as a claimant of extramarital filiation. The donor, whether he is considered passively, as the object of a possible paternity claim, or actively as a claimant of paternity, is in no case considered as the father. Both claims, the one brought against him or the one brought by him, must be rejected, without going into the merits.
Obviously, there is a ready reply to everything that has been said so far. All this reasoning is a legal subtlety. It is the law, an artificial product of men, which denies the relationship between donor and child the character of a filial-paternal relationship. For science, the donor is a progenitor. Certainly not in the classical way, but a progenitor. It is his sperm, deposited some time ago, that set fertilisation in motion and with it pregnancy and childbirth. That, in science and in my town, is known as the father.
The reduction of the real to the scientifically evident is a latent principle in our world. So that common sense is the scientific sense of things. With this immense obstacle we have to face. I said "reduction" and I think I got it right. Reduction in the sense of taking the part for the whole. In other words, to absolutise the scientific side of reality by eradicating any other possible point of view. It is undeniable that the sperm deposited by the donor sets in motion the biological process that gives rise to a new life. There is no need, and even less interest, in denying this fact. The question is whether, in any case, this fact implies paternity. That is to say, whether contributing to bringing a new being into the world always implies paternity. The donor contributes to bringing a new being into the world. That is why he makes (or, at least, accepts) his donation. It is debatable whether the basic motivation for his donation is reproductive. Moreover, in principle it is unlikely. He may do so out of a need for a small consideration that does not disfigure the donation and turn it into an unacceptably onerous business7. An ejaculation provoked in front of the grey walls of a laboratorydoes not seem to be an act expressive of the desire to perpetuate oneself in another being. It may express love for Humanity, for Science, for Progress or, why not, for money. What is unquestionable is that it is accepted with a scientific-reproductive spirit by the entity that is dedicated to the realisation of assisted reproduction techniques.
What is clear, however, is that a donation has been made. When it is required and emphasised for this purpose that it is and must be a donation, the gratuitous nature of the semen deposition is emphasised. Trafficking in semen is not conceived, and therefore sale is not allowed. But donation and sale coincide in something truly essential. Both involve alienation. The donor gives away something that ceases to be his own and becomes at the disposal of others, who will use it as they see fit. The donor then loses all relationship with what has been donated. A link of a biological nature remains, and in this sense it continues to be his insofar as the word "his" indicates the permanence of some genetic data. But it ceases to be "his" in the sense that he does not decide on what, in its materiality, already belongs to another. It is therefore impossible to attribute to the donor any responsibility for the results that may be generated by the use of what he has parted with. No relationship can be established between the donor and the new being that results from the use by others of that which he has already given up.
The permanence of a genetic data, through something that one has been detached from, and its perpetuation in another person, is not equivalent to paternity. This connection, not relationship, is what science categorises as paternity, thus producing a reduction and impoverishment of the notion of paternity. From the perpetuation in others of some genetic datapaternity is deduced. But biological continuity does not imply paternity. The being resulting from my sperm deposition in an entity dedicated to assisted reproduction is not my child. Nor am I its father. This child, the son of his mother, has no father. The donor has no role in the process leading to the pregnancy of the mother and the birth of the child8. The expression "biological father" is absurd. Paternity is indivisible. Hence, it makes no sense to make aspects of it independent and substantivise them. Even less so to give them different roles according to the aspect of reality in question. Certain distinctions are either of reason (and its field is logic) or of laboratory(and its field is Biology). But Anthropology does not admit them because it has an integral vision of man. And it is the latter that Law, as a social organisation, must take into account.
Fatherhood has its own means of expression through the male's carnal access to the female. Is the drunkard who rapes a woman and makes her pregnant, who subsequently gives birth to a child, a father? Undoubtedly, but his behaviour is animal! Perhaps, but animality is a dimension of the human being that not only does not question fatherhood, but reaffirms it. For these purposes, it doesn't matter whether he is drunk or whether he crosses himself before penetrating the woman.
In this sense it can be said that Walt Disney has done us a disservice. By sentimentally humanising animals, he has equated the animal condition of the rational being with the animal condition of the irrational being. So he has inoculated the image culture with the idea that "mommy" dog and "mommy" person are very close. In this way, it has elevated the mere biological causality of the dog that begets to the level of the biological causality of the man who begets. In human sexuality, the human being's own reason is involved. The sexuality of the dog and the sexuality of man are not comparable. On the other hand, the biological causality of the donor and the biological causality of the dog are identical. In one case, the practitioner sets the human life-generating process in motion by choosing the sperm that seems most suitable. In the other, the dog, responding to a necessary behaviour, sets the animal life-generating process in motion. There are no known celibate dogs. On the contrary, celibacy is part of human history.
Can couples, whether married or not, who cannot have children through the "traditional method" and resort to assisted reproduction techniques be considered as parents? Here it is important to distinguish between cases in which sperm from a third party, an anonymous donor, is used, and cases in which the reproductive material used belongs to the couple, whether married or not.
When the couple does not provide the reproductive material, and it is therefore essential to resort to the semen left at the time by an anonymous donor, the role of the man present is pathetic because he does not even get to the point of being a donor. His "witnessing" attitude allows the law to extract from his conduct an assent from which paternal responsibilities are derived. But, of course, he is not, nor does he pretend to be a father. He simply bears the humiliation with greater or lesser dignity.
When the couple provides the reproductive material, the case takes on a certain difficulty. On the one hand, the male's role cannot be equated with that of the donor. The deposition of semen has a clear reproductive intention and he does not discard it, so that he himself controls the use to which the semen is put. Thus, through his behaviour, he sets in motion the biological process that will culminate in the birth of a new being, a process that is contemplated in its entirety by the male in question. He cannot be denied a leading role in the fact that "that" woman gives birth to a child that carries within it all its burden Genetics. But, however much staffand consciously she participates in the process by virtue of which a person is born, can this participation be qualified as paternity? Is the man substitutable in the task that Nature designed for him?
The above question leads us to ask ourselves about the male protagonism in procreation. The scientific reading of the reproductive process implies a rational configuration which, to a certain extent, supposes its dematerialisation. There is thus a split between the scientific description of this process, which is always rational, and the actual event. So to speak, what is in reality a fusion of bodies is transferred to a blackboard as a rational sequence graspable in its immateriality as a rational process. In this way, rational description acquires autonomy as a paradigm that humans repeat with a certain frequency. But it is no longer the concrete realisation of the paradigm that matters, but the paradigm as such. The blackboard replaces reality, which is relegated to a mere repetition of the paradigm. Science produces a Bdehumanisation of one of the high points of every person's life. And in this way, the scientific vision of man leads to his impoverishment. Impoverishment that manifests itself in the loss of value of the bodily dimension of man. Once this bodily dimension has been devalued, it is impossible to grasp the arbitrary dehumanisation that entails its substitution by techniques that achieve the same result. But this substitution is impossible, because the technique never gives rise to an act of man. And the male protagonism in procreation is an act of man understood in its totality, which obviously includes his bodily dimension. The enthronement of science and the disdain for the material - "dogs do it" - explains the devaluation of carnal copulation. Thus, we are led to believe that what is done scientifically is equivalent to human behaviour9 . And since this substitution in turn results in a greater power of man over himself, it is impossible to grasp the profound aberration of substituting man for his own skills. If a sperm bank plans to produce 25 children for each donor, it seems clear that paternity is replaced by a mass production of people.10 Is it conceivable that a man could have 400 children? This is a case where the quantitative affects the qualitative. A person does not have 400 children even if his sperm has been used successfully on 400 occasions. Sperm from which he shed twice a week for a certain period of time, receiving 20 dollars for each, translates into mere biological causality. But anthropologically he was not a father 400 times, unless one reduces man to pure biology11.
But, in any case, the donor is not replaced by assisted reproduction techniques. The donor is a subject outside the reproductive process. With respect to him, paternity does not even arise. Hence, the subliminal equating of donor-father implies a greater confusion due to the scientific conformation of the culture.
For the same reason, the paternity of the donor is not configurable even from what we can call "the magic of results", which is very present in this field. The Catholic Church, which rejects these procedures, cannot ignore their results. If a Catholic woman comes to her parish priest asking for baptism for the child she has given birth to alone and unmarried in life, and without the cooperation of any man, the parish priest must administer the sacrament to the child without questioning the suitability of its conception. The child becomes independent of the process followed to bring it into the world, demanding an autonomous protagonism. Assisted reproduction techniques demand to be judged on the basis of their results. This is why successive celebrations of the birthdays of the first babies born according to these procedures attract the attention of the media.12 Who would dare to say to "a test-tube child": "you should not have been born"? The optimal character of result- a new human being - seems to display a certain retroactive efficacy. To appreciate a person is to rejoice in his or her existence. Joy that cannot be overshadowed by consideration of the way in which it was brought into existence.
But all this does not affect the donor. The donor will not be dazzled by "the magic of the results". Oblivious to the reproductive process, he goes on with his life without any knowledge of the possible impact of his donation. He does not feel the weight of a non-existent paternity13.
Notes
(1) Therefore, this workwas drafted and published before Royal Decree 820/2005, of 8 July (B.O.E. of 23 July) was enacted, which "modifies article191 to eliminate, in cases of registrationof birth when there is only one filiation, the obligation of the mother or father of the minor to invent a false parent for the sole purpose of identification. In this way, a response is given to a social demand that has been included in a recommendation of the Ombudsman of January 2000" (exhibitionde Motivos del Real Decreto). This means that from this modification onwards, the Resolutions of the General Administrationof the Registers and Notaries cited in the workwill not be repeated in the future, although they still seem to me to be appropriate for educational purposes. On the other hand, I think I have anticipated the reform, which seems to me to be unquestionable in the case of a non-existent father (fertilisation with donor sperm), although debatable in the case of an existing but unknown father, since in the latter case there is a father and it is as false to invent a name as to imply that there has been no father. According to the newspaper El País, Sunday 6 November 2005, p. 30 "In the United States there are 90,000 sperm donations every year. In the United Kingdom some 25,000 people have been born in the last 15 years through sperm donations".
(2) "Don't have a partner? Then we can't help you". This 34-year-old from Madrid ... decided a year ago that she wanted to "be a mother, not a wife" ... But when they found out I was single they closed the door on me. Diario El País, Tuesday 1 July 2008, p. 47. However, the public health system will fertilise single women in Andalusia. Diario El País, Friday 30 May 2008, p. 41.
(3) María Dolores de Cospedal. PP candidate for the presidency of Castilla-La Mancha. Interview. Question: "Divorced, single mother and by artificial insemination in plenary session of the Executive CouncilPP. Are you going to Sodom and Gomorrah? Answer: "No, for God's sake. I think there are many divorced women and many single mothers in this country, and they are not considered Sodom and Gomorrah". El País newspaper, Sunday 11 June 2006, p. 96.
(4) See Mamá y mamá. El País Semanal. issueSunday 14 May 2006, p. 52-62. On page 54 a lesbian couple explains the difference between known father and donor.
(5) Law 14/2006, of 26 May, on assisted human reproduction techniques, which repeals Law 35/1988, of 22 November, maintains the confidentiality of the donation.
(6) Revealing the name of the donor to the newborn seems to me to add evil to evil, as well as an excess of sentimentality about its origin. "A young US woman, conceived with donated sperm, will be reunited with her father. Dad is no longer called a test tube": Diario El País, Monday 20 May 2002, back cover. What will never disappear will be the longing to meet the donor. Mr. Donor, I am your son. A young man from the United States finds his father, who provided the sperm anonymously, thanks to the Internet. El País newspaper, Sunday 6 November 2005.
(7) The payments "for the inconvenience" to the sperm donor are around 120 euros. Vid. El País, Wednesday 9 February 2005, p. 29.
(8) Dictionary of the Royal Academy of the Spanish language. Voice Father. 1. "Male or male who has engendered.
(9) In paternity, there is no room for "technical" errors such as the one suffered by a white British couple who had black twins after undergoing fertilisation. El País newspaper, Tuesday 9 July 2002, p. 64.
(10) In the Netherlands (Jeroen Bosch hospital) the sperm of a donor with a severe hereditary disease (autosomal dominant cerebellar ataxia) was used to conceive 18 children. "To the bad news received by the parents must be added the fact that most of them would have preferred to hide the exact circumstances of their conception from their children": Diario El País, Friday 1 March 2002, p. 32.
(11) "A donor with 400 children". El Mundo. Crónica. Sunday 14 February 2010, p. 12.
(12) Victoria Sánchez Perea tells how her mother "explained to her that they had taken a sperm from my father and put it together with one of his eggs and put it in her tummy so that I would grow". He was the first test-tube baby in Spain. La Vanguardia, Thursday, 26 August 2004, p. 52.
(13) Angela Bautista (journalist) gave birth (at the age of 35) to her daughter Ana (now 7 years old) by artificial insemination from an anonymous donor. She has a partner, but each lives at home. "I have a father", she says, "but we don't know who he is and he doesn't know that I am his daughter either, he only gave his little seed. My family is me and my mum": The family revolution. El País Semanal. issue1.515. Sunday 9 October 2005, p. 57.
Borrowed grandmother. "I am writing to contribute my grain of sand to the report La revolución familiar (The family revolution); last Sunday, October 9th. I am a 65-year-old woman and a grandmother. So far, nothing special. What is special is that I am the grandmother of twin boys, Ton and Marti, who are the children of a friend of mine who had them through artificial insemination. When she became pregnant she was sad that the boys would not have a grandmother, as their mother had passed away some time ago. I offered her the chance to be their grandmother, and she was thrilled to accept. I have followed the gestation, the birth and up to this moment when my grandchildren are two years and four months old; I enjoy being with them, and we are mutually enriched by this relationship. The mother lives with her partner and the two children, and I, who have no children, am separated, currently living with my ex-husband. The ties that bind us are not of blood, certificates or papers, they are ties of love and respect. It makes me very happy to enjoy the lives that are growing, those of my grandchildren, who for me are the most beautiful in the world! Assumpta Sánchez Rectoret. Sabadell (Barcelona). El País Semanal, issue1.519, Sunday 6 November 2005, p. 7.