Recently, the Florida Supreme Court issued a ruling that a man, Angel Rivera, who provided sperm through an informal DIY at-home insemination for friends, did not automatically relinquish his parental rights.
In 2019, same sex couple Ashley Brito and Jennifer Salas wanted to create a baby. IVF is a costly proposition, ranging from $15,000 to $20,000 per cycle, and has only a 20% chance of success per single embryo cycle.
To sidestep these costs, Brito and Salas crafted their own arrangement with Rivera. Rivera provided sperm, and they used a plastic syringe from a drugstore kit to inseminate Brito. Once Brito learned she was pregnant, Brito and Salas got married. In 2020, Brito gave birth to a baby boy.
Because Brito and Salas were married, both Brito and Salas were listed as the child’s two parents on the birth certificate. In Pavan v. Smith, the Supreme Court held that if a same sex couple welcomes a child, then both names should appear on the child’s birth certificate as legal parents. Pavan has resulted in subtle, yet massive implications – some children no longer have a legal Mom and Dad, but interchangeable, genderless parents.
The conflict began one year after the child was born, when Brito and Salas separated. After Salas moved out, Rivera and Brito filed a petition to recognize Rivera as the child’s legal father. This raised the question: did Rivera relinquish his parental rights? Was he really merely a sperm donor?
Part of the conflict stems from a disagreement about Rivera’s role in the arrangement. IVF clinics require contracts to specify exactly who the parents are and clarify that donors do not have the rights or responsibilities of parents. In this case, Brito, Salas, and Rivera did not use an IVF clinic, and they did not have a written agreement. They all exchanged texts and photos of the child, in which Rivera referenced the child as “our son.” Salas, however, asserted she and Brito were the child’s only parents.
In Florida, the law on assisted reproductive technologies references married Mothers and Fathers seeking medical assistance from IVF clinics. This case, Brito v. Salas, clarifies that the law does not apply to casual sperm donation arrangements that occur outside a clinic setting. For Rivera, this means that he did not automatically surrender his parental rights through the informal agreement.
This case raises multiple ethical issues wrapped in the context of gamete donation. Intended parents using social sperm donations may assert that casual arrangements fulfill procreative liberty, the freedom and autonomy to create children. Using social sperm donations expands reproductive choice with a lower price tag and fulfills intended parents’ reproductive choices. Despite this, it can also induce confusion and create barriers if the “donor” perceives his role as something more, and tries to formally establish a relationship with the child.
It also raises three potential ethical issues relating to the child’s interests: (1) psychological well-being; (2) identity formation; and (3) human rights. Some evidence suggests that donor conceived persons may experience psychological distress, anger, or sadness related to their conception from donor gametes. Connection to genetic origins may be important to a person’s construction of identity and developing a sense of self. In the context of human rights, Article 7 of the United Nations Convention on Rights of the Child states that children have a right to know and be cared for by their parents. Some legal scholars interpret this provision to mean that laws should facilitate children being raised by their genetic parents, when possible.
People considering informal sperm contributions should consider the risk and potential fallout from these arrangements. This has potential implications not only for sperm donations arranged through social media, but also casual relationships that result in a child where parties may hold different expectations for roles and responsibilities.
This decision leaves open the possibility that Rivera could file a claim as the child’s father to become more involved in the child’s life. This also raises a separate question: what happens if a court recognizes Rivera as the child’s father? Can, or should, a child have three legal parents?
For hundreds of years, the law recognized that a child has two parents: Mom and Dad. Situations such as adoption or using assisted reproductive technologies can modify a child’s legal parents – who is responsible for, and cares for the child. But several states have gone much further, declaring that children can have three legal parents, such as in cases involving polyamory and couples using sperm from a friend. Despite initial plans that everyone would happily raise the child together, these relationships became mired in conflict and arguments over how to split time with the child.
Navigating parental rights is a zero-sum game. If a right is enlarged to add more parents, it is diminished for the child’s biological parents. Children’s time, attention, and loyalty are finite resources. Adding more parents with decision-making authority comes with a cost and significant burden to the parent-child relationship, increasing the potential for conflict when managing and rearing the child. Children may feel pulled in multiple directions, which can leave children confused and adrift.
Families should provide structure, stability, and a sense of identity. The law should facilitate relationships between fit, capable biological parents and their children. If faced with this question, courts and the state legislature should not make the mistake of trying to conform the law to social trends, but affirm that a child has only two legal parents.
Katherine Drabiak, JD is a Professor of health law, public health law, and medical ethics in the College of Public Health at the University of South Florida.