by Mary Summa, JD

A Letter To My Father. Who are you?
I ask myself this question every time I catch a glance of my reflection in the morning … I fear for what the future holds and wonder if I will receive [sp] any slight information about you. I grieve for you and for the part of myself that I will never truly know. I feel as though half of me is missing alongside my family, because that’s what you are. Family.
I feel as though I have been cheated out of knowing you, communicating with you, as I never got a say in the first place. I still don’t now, You are Anonymous.
And there is nothing I can do to change that.¹

The pain revealed by this writer is palpable. One may think it is the story of a child whose father died or abandoned the family. In truth, it is a letter from a child to her biological father, an anonymous sperm donor.

One hundred sixty years ago, human beings in this country were treated as chattel, bought and sold on the auction block to the highest bidder. A civil war settled the matter: America would not tolerate the sale of human life. Now, with the help of the medical profession and the blessing of the judiciary, this past is being repeated. The only difference is that now babies, in whole or in part, are being sold, many times by their own parents, who before these babies’ conceptions have no intention of rearing them.

This new phenomenon raises several questions: Should parents be free to sell their biological children? Do children have a right to know their biological heritage? How does the changing meaning of parenthood affect freedom? Failing to confront and properly answer these questions could spell disaster.

Parenthood Within Marriage 

Traditionally, “parent” has always been defined as a mother or father related to a child by blood. Under common law, a woman who gave birth to a child was considered the child’s legal mother. If the mother and father were married at the time of the child’s birth, the husband was presumed to be the child’s father. The title of mother and father, and the obligations and rights attached to that title were exclusively the husband’s and wife’s. In short, biology determined motherhood. Marriage presumed legal fatherhood.²

The inextricable common law link between marriage and parenthood was not serendipitous. Rather, the law elevated marriage and parenthood,³ reflecting an aspirational morality.⁴ Judges and lawmakers understood that marriage provided the best environment for the rearing of children. Additionally, marriage linked fathers to their children.

Illegitimacy was frowned upon in public policy well into the 20th Century. Laws extended few, if any, of the rights traditionally enjoyed by married couples to unmarried couples. Adoption laws were legislatively-created laws, which were not found in common law, enacted to protect children’s health and well-being.

Marriage laws were designed to keep the marriage intact, and to keep children in the custody of their biological parents. Divorce was obtainable, but only after egregious behavior by a spouse was proven in court.

Government Redefines Marriage 

Law often influences a society’s morality. As pointed out by Hadley Arkes in his book, Natural Rights & the Right to Choose, “as the public absorbs the understandings of right and wrong contained in the laws, the character of the public becomes shaped for better or for worse.”⁵

The 20th Century brought forth a different understanding of the foundation of law and public policy. Influenced by their European counterparts, American jurists began rejecting natural law and embracing legal positivism, a jurisprudence that defines law by what the majority says it is, and that was less moralistic, less judgmental, and less demanding than natural law. Stoked by the sexual revolution, the last quarter of the 20th Century witnessed personal autonomy masquerading as individual liberty dominating legal theory, particularly in the area of sexual freedom. In terms of marriage laws, the focus shifted from children’s needs to adults’ wants.

No-fault divorce illustrates the law’s changed focus and its impact on marriage and parenthood. In 1969, California enacted the country’s first no-fault divorce law.⁶ By 1974, all but five state legislatures had adopted no-fault divorce.⁷ In 2010, New York became the final state to legalize no-fault divorce.⁸ As a result, divorce rates sky-rocketed. Since 1974, according to the online publication National Affairs, over one million children every year see their parents divorce.⁹

The same-sex “marriage” movement has impacted the stability of marriage and family life as well. In order to accommodate homosexual relationships under the marriage umbrella, courts and legislatures have redefined marriage in ambiguous terms of “love and commitment,” rather than as an institution designed to channel sexual activity into a permanent, life-long relationship for the rearing of children the couple begets.¹⁰ This slight of hand, has imposed significant damage on the meaning of parenthood. As underscored by one expert, “Rather than attaching children to their biological parents, same-sex ‘marriage’ is the vehicle that separates children from a parent.”¹¹

Reproductive Technology Is Redefining Parenthood

No-fault divorce legitimized the separation of children from one parent, usually the biological father. Remarriage and step-parenting introduced into public policy the idea that “parenthood” was no longer exclusively the right of one father and one mother.

Concurrently with the legal weakening of marriage, new reproductive technology, such as artificial insemination, in vitro fertilization, and surrogacy, medically redefined parenthood. For the first time in history, legal parenthood no longer depended on genetics and gestation.

Artificial Insemination separates conception from the procreative act, allowing it to occur with sperm donations from anonymous donors. The first baby produced by artificial insemination was born in 1953. Today, the procedure is relatively routine. There are no official records of the number of children conceived by artificial insemination. One source has reported that by 1987, 172,000 women were artificially inseminated in the U.S. each year, resulting in 65,000 births.¹²

In vitro fertilization, a newer procedure, allows for conception to occur outside the womb, many times with anonymously donated eggs and/or sperm. The embryo is then implanted into a woman’s uterus. In 1979 the federal Ethics Advisory Board approved federal funding for research on in vitro fertilization. The first IVF clinic opened in the U.S. in 1980. In 1981, the first “test tube” baby was born in the U.S. By 2004, according to a series produced by PBS, over half a million babies worldwide were conceived outside the womb. There are 450 IVF clinics in the United States alone.¹³

Sperm banks and egg donor centers have become big business in the U.S. While it is unclear how many banks exist in the U.S., Daily Finance, an online business publication, reports that donations are up during this recession. Cryobank, a sperm bank in Los Angeles, pays donors $100 per donation. The sperm bank recruits college students, who make approximately $1,000 per month donating sperm to the bank. Donors work for the company an average of one and a half years.¹⁴ Just doing the math, conceivably, an anonymous college male student could biologically father hundreds of babies during his employment with the sperm bank, a possibility that has raised concern about accidental incest.¹⁵ Egg donations reap even greater profits. According to the website Heartlander, it is a $3 billion business reaping $4,000 per egg for the egg donor.¹⁶

Surrogacy. Artificial insemination and in vitro fertilization separate legal parenthood from genetics. Surrogacy removes legal parent status from the gestating mother. With surrogacy, a woman is paid to carry to term a baby for another person or couple in exchange for money. She is neither biologically related to the child nor intends to keep the child. Although there is no official recordkeeping on how many babies are born via surrogacy, a 2010 Chicago Tribune article estimated that 1,400 babies are born in the United States each year through surrogacy.¹⁷

Most recently, reproductive technology has pushed the envelope even further. In Britain, scientists have been granted permission to create embryos with three genetic parents, and, according to the Commission on Parenthood, researchers announced in 2005 that they developed human embryonic stem cells into forms of cells that can become eggs and sperm. In Edinburgh, Scotland, researchers announced that they had “tricked” an egg into dividing and created a human embryo without a genetic father.¹⁸

Government Dismantles Parenthood

Rather than protecting children’s needs for a mother and father, legislatures and courts have engaged in legal back-bending to accommodate adults’ desire for parenthood. The term “parent,” once defined by biology, is now being legally defined in terms of genetics or gestation or intent. In fact, legal trends indicate the elimination of genetics or gestation as grounds for parenthood and a reliance solely on parenthood by “intent.” In Ireland, for example, a proposal was presented that recommended that a surrogate have no legal standing with regard to a child that she bears during or after birth.

This trend in the U.S. is most readily seen in the area of surrogacy. According to the website Allaboutsurrogacy.com, 14 states have statutorily legalized surrogacy contracts.¹⁹ In North Carolina, in 2009, a bill was introduced to legalize surrogacy contracts. In that bill, the surrogate was described as the “gestational carrier.” The contracting couple was described as the “intended parents.” Currently, gestation establishes legal motherhood.²⁰ If the bill had been enacted, arguably, the bill would have surreptitiously introduced into North Carolina statutory law “parenthood by intent.”

Same-Sex Relationships’ Effect

The legalization of same-sex “marriage” has brought increased political pressure on jurisdictions outside the U.S. to define parenthood by “intent” and to erase references to genetics on birth certificates.

In Canada, when same-sex “marriage” was legalized in 2004, the law quietly changed the term “natural parent” to “legal parent.”

In Spain, eight months after legalizing same-sex “marriage” in 2005, the law governing birth certificates was changed. Rather than “mother” and “father,” birth certificates now read “Progenitor A” and “Progenitor B.”²¹

In the U.S., courts have succumbed to pressure from same-sex couples to eliminate references to gender or genetics on birth certificates.

In 2005, the American Civil Liberties Union won a court order in New Jersey granting the right to two lesbians to be listed on a birth certificate as the parents of the child born to one of the lesbian partners.²²

In Virginia, in 2006, a court ordered lesbians to be listed as “Parent 1” and “Parent 2” on a birth certificate after the couple opposed having one of the partners listed as “father.”²³

In Iowa, as of November 2011, a case was pending where a lesbian couple asked the court to require the state to list them as the “parents” of a child born to one of the partners as a result of artificial insemination.²⁴

Parenthood Myths. In recent years, courts and legislatures have created two very similar legal myths, called the “psychological parenting doctrine” and the “de facto parenting doctrine,” to award parentage and custody rights based on “intent” to non-biologically related individuals. Although this doctrine has been used by cohabitating heterosexual couples, the expanding body of case law involves same-sex couples.

A “de facto parent,” as defined by the American Law Institute, is an unrelated adult who has lived with a child for two years and provides a majority of childcare (or at least the same amount as the primary legal parent) with the approval of one legal parent or where the legal parent fails to provide it.²⁵ Psychological parenting bears a similar definition.

Under de facto and psychological parenting, a child may have a number of “parents” petitioning the court for joint custody and visitation.²⁶ Unbeknownst to an ex-husband, the government may force him to share his child visitation with one or more of his ex-wife’s boyfriends or girlfriends.

In several states, courts have refused to adopt the de facto parenting doctrine. Nonetheless, the doctrine has received significant traction in other state courts. According to a report by the Commission on Parenthood, as of 2006, at least 10 states have recognized the de facto parenting doctrine. The North Carolina Court of Appeals adopted the doctrine in 2008, and the North Carolina Supreme Court used it in 2010 in two cases to award joint custody to a lesbian partner who was not biologically related to the child.²⁷

The Psychological Impact on Children

Despite all the medical and legal energy expended to accommodate adults (whether heterosexual or homosexual) desiring parenthood, very little thought has been given to the overall impact on children. Collateral research suggests the damage is irreparable.

Biology matters. Research shows that children who grow up in families with one biological parent and a step-parent have outcomes that more closely resemble children growing up in single-parent households in numerous statistical areas: lower academic achievement, poorer physical and mental health, and more abuse within the home. Girls engage in earlier sexual activity and have higher rates of pregnancy. Boys have higher rates of violent behavior.²⁸

Children want to know their parents. More children, similar to the one at the outset of this article, are coming forward and revealing their pain. In 2005, David Blakenhorn, a marriage and family expert, spoke about Narelle Grech from Australia. Narelle, is now a 28-year old donor-conceived female who wrote to the Canadian ethicist Margaret Somerville about a magazine article where Somerville advocated societal acceptance of all reproductive technologies. As quoted by Blakenhorn, Narelle wrote the following:

I feel as though donor conceived people are the last to be thought of in these trade deals; only adults, including clinics, doctors and wannabe parents … little bits of non-identifying information will not substitute for the real person’s family. You are not only encouraging people to intentionally separate people from their families, you are going to be the cause of people who have to question their identity and no one on this earth should have to do that. How dare someone take away someone else’s freedom to know themselves.²⁹

Researchers caution that stories like these could become all too commonplace as children continue to be biologically separated from their parents.³⁰

For the Sake of Freedom 

In his book, The American Cause, 20th Century political theorist Russell Kirk cautioned,

The American cause is not the cause of a revolutionary thirst for demolishing all obstacles to anarchic self-gratification…. American freedom has been the liberty of temperate policies and temperate intellects.³¹

The right of fit parents to rear their biological children as they deem appropriate is a fundamental right of liberty, historically recognized in common law and protected by courts and legislatures. The right to custody is the keystone of parental rights.

These attempts to satisfy the desires of adults at the expense of children are dismantling the foundations of freedom. Redefining parenthood by disconnecting it from biology and connecting it to “intent” takes the presumption of parenthood from parents and gives it to the state. Parents have become beholden to the whims of an all-powerful bureaucracy or judiciary to determine the destiny of their own children.

For the Sake of Children

Reportedly, Mother Theresa once said, “One of the greatest diseases is to be nobody to anybody.”³² By promoting anonymous parenting by commission or omission, legislatures and courts are inflicting far worse on today’s children: They are allowing the creation of children who are intended to be “nobodies” to their own parents.

The parent/child relationship is the strongest bond in human nature. Marriage is the best environment for children to thrive. Laws have recognized these facts and protected these relationships. Of late, those laws have been dismantled to accommodate the selfish whims of adults.

North Carolinians should demand that the General Assembly restore children’s interests, not adults, to the focus of family law. The Legislature can begin that process by prohibiting the sale of these children, in whole or in part, by banning surrogacy agreements and the marketing of sperm and eggs. Secondly, the General Assembly should legislatively nullify the judge-created de facto parenting doctrine existing in this state. Lastly, the General Assembly should repeal no-fault divorce laws, especially when minor children are involved.

Refusal to take these active steps will make the outcries by the woman at the outset of this article not merely the scars of a disease affecting a few, but the manifestation of an epidemic intentionally inflicted on children. 

Mary Summa is an attorney in Charlotte, North Carolina.

Re-printed with permission from Family Council of North Carolina.  Summer 2012

1. “Stories From Donors Conceived: A Letter to My Father.” AnonymousUs.org. September 26, 2011. http://anonymousus.org/stories/ Last visited March 10, 2012.

2. Although not recognized by common law, states in the mid 19th Century began enacting adoption laws that provided a legal link between children and married parents. In the early 20th Century, adoption laws were fleshed out to insure that the child was being placed in a stable and safe environments. Social mores dictated that children Preferences in Adoption Law in All 50 States, iMAPP Policy Brief. February 4, 2005. http://www.marriagedebate.com/pdf/iMAPPmarriage.adoption.pdf Last visited March 12, 2012.

3. Linda C. McClain, “Love, Marriage, and the Baby Carriage: Revisiting the Channelling Function of Family Law.” 28 Cardoza Law Review 2133, 2133 (2007). http://www.cardozolawreview.com/content/28-5/28.5_mcclain.pdf. Last visited March 9, 2012.

4. Carl Schneider. “Moral Discourse and the Transformation of American Family Law.” 83 Mich. L. Rev. 1803, 1819 (1985).

5. Hadley Arkes. 2002. NATURAL RIGHTS AND THE RIGHT TO CHOOSE. Cambridge: Cambridge University Press. 3.

6. W. Bradford Wilcox. “The Evolution of Divorce” National Affairs. Issue No. 1. Fall 2009. http://nationalaffairs.com/publications/detail/the-evolution-of-divorce Last visited March 9, 2012.

7. Ryan MacPherson, “From No-Fault Divorce to Same-Sex Marriage: The American Law Institute’s Role in Deconstructing the Family” The Family in America. Spring 2011. http://www.familyinamerica.org/ Last visited March 10, 2012.

8. Carolyn Kolker and Patricia Hurtado. DLR 170 (2010). “Divorce Easier As New York Ends Need to Lie.” Bloomberg. August 16, 2010. http://www.bloomberg.com/news/2010-08-16/breaking-up-not-so-hard-to-do-as-new-york-s-divorce-law-ends-need-to-lie.html. Last visited March 11, 2012.

9. Wilcox. 2.

10. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003).

11. Jennifer Roback Morse. “Prepared Remarks for the Rhode Island Legislature, Hearings on Same Sex Marriage.” Providence, Rhode Island. February 9, 2011. Reprinted at http://www.ruthinstitute.org/DefendingMarriage/RhodeIsland.pdf. Last visited March 13, 2012.

12. Diane Fitzpatrick. “The History of Artificial Insemination.” Life123.com. http://www.life123.com/parenting/pregnancy/infertility/the-history-of-human-artificial-insemination.shtml Last visited March 10, 2012.

13. The History of InVitro Fertilization” PBS. Last visited March 9, 2012.

14. Betsy Schiffman. “U.S. Sperm Donations Rise in Recession” Daily Finance. 5/6/10. < http://www.dailyfinance.com/2010/05/06/sperm-bank-donations-rise-in-recession/&gt; Last visited March 9, 2012.

15. See Jacqueline Mroz, “One Sperm, 150 Offspring”, The New York Times online. September 5, 2011. <http://www.nytimes.com/2011/09/06/health/06donor.html?pagewanted=all&gt; Last visited March 9, 2012.

16. Emerging Human Embryo Market Poses Moral and Ethical Dilemmas. Heartlander. May 1, 2008.< http://news.heartland.org/newspaper-article/2008/05/01/emerging-human-embryo-market-poses-moral-and-ethical-dilemmas.&gt; Last visited March 12, 2012.

17. Nana Schoenberg. “Born in the U.S.A.” Chicago Tribune. April 16, 2010. http://articles.chicagotribune.com/2011-04-13/health/ct-news-surrogate-mom-20110413_1_surrogacy-center-for-surrogate-parenting-international-parents. Last visited March 9, 2012.

18. Roger Hieghfiel and Nic Fleming. “Scientists Create Human Embryo Without a Father.” The Daily Telegraph. 10 September 2005. Reprinted at http://www.chiefsplanet.com/BB/archive/index.php/t-123682.html&gt; Last visited March 10, 2012.

19. “State Laws By State.” AllAboutSurrogacy.com. http://www.allaboutsurrogacy.com/surrogacylaws.htm.

20. N.C.G.S. 130A-101(2009).

21. David Rennie. “How’s Your ‘Progenitor A?’ The Telegraph. March 7, 2006. http://www.telegraph.co.uk/news/worldnews/europe/spain/1512344/Hows-your-Progenitor-A.html Last visited March 9, 2012.

22. “Birth Certificate Victory for Same Sex Couple” ACLU Newsletter. 24 May 2005. http://www.aclu-nj.org/news/2005/05/24/birth-certificate-victory-for-same-sex-couple/ Last visited March 9, 2012.

23. Anne Case, et. al. “How Hungry is the Selfish Gene?” The Economic Journal 110 (October 781-804) (2000).

24. “Gay Couple Fights for Names on Birth Certificate” Des Moines Register. November 8, 2011 <http://www.usatoday.com/news/nation/story/2011-11-08/same-sex-couple-birth-certificate/51122394/1&gt; Last visited March 9, 2012.

25. AMERICAN LAW INSTITUTE: PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION; ANALYSIS AND RECOMMENDATIONS. 2002. Section 2.03. St. Paul, Minnesota: American Law Institute Publishing.

26. See William Duncan, “The Legal Fiction of DeFacto Parenthood” 36 Journal of Legislation 263, 265 (2010). <http://www.nd.edu/~ndlaw/jleg/issue_articles/volume36/Duncan_Final.pdf&gt; Last visited March 9, 2012.

27. Boseman v. Jarrell, ___N.C.____ , 704 S.E.2d 494 (N.C. 2010); Davis v. Swan, ___N.C.___, 697 S.E.2d 473 (2010).

28. Anne Case, 784.

29. David Blankenhorn. “The Rights of Children and the Redefinition of Parenthood.” Presentation Before the Danish Institute for Human Rights. 2 June 2005. http://www.americanvalues.org/html/danish_institute.htm Last visited March 12, 2012.

30. David Blankenhorn et al. 2006. THE REVOLUTION IN PARENTHOOD: THE EMERGING GLBOAL CLASH BETWEEN ADULT RIGHTS AND CHILDREN’S NEEDS. New York: Institute for American Values. http://www.americanvalues.org/pdfs/parenthood.pdf. Last visited March 11, 2012.

31. Russell Kirk. 2002. THE AMERICAN CAUSE. Wilmington, Delaware: ISI Books. 65.

32. ”Quotes from Mother Theresa.”.<goodreads.com.http: http://www.goodreads.com=”&#8221; quotes=”” search?q=”%22The+greatest+disease+is+<span” class=”hiddenGrammarError” pre=”is “>to+be+nobody+to+anybody.%22&commit=Search> Last visited March 10, 2012.