no. 354

"Judge says accidental sperm donor has no right to know if he's a father"
Posted by The Oregonian April 16, 2007 15:56PM
-- Ashbel S. Green

Excerpts:

"A Portland man whose sperm was inadvertently given to a Salem-area woman has no right to find out whether he is a father, a Multnomah County judge has ruled.

Circuit Judge Henry Kantor said he was not finished writing his opinion, but wanted the parties to know his decision because it had been so long - nearly seven months - since they argued the case before him.The man, who sued for a paternity test under the initials M.H., claimed that he produced a sperm sample at Oregon Health & Science University's fertility clinic in September to impregnate his fiancee. The same day, a Marion County couple that had struggled to start a family was visiting the clinic. A mix-up occurred, and clinic workers gave M.H.'s sperm sample to the woman."

"Michael G. Smith, the attorney for the Marion County couple, praised the decision. He said he expected M.H. to appeal. "I think essentially what they would be doing is to ask the Oregon Court of Appeals to declare Oregon's artificial insemination statute unconstitutional, which is a tall order," Smith said"

Full text of the Oregonian article at the Annex.

My Opinion:

I can understand the plight of the couple given the sperm by mistake but I think the judge got the decision wrong. I'll have to wait to see the written opinion once it is public but to me it appears the decision has a fatal flaw.

I have posted the Oregon statute on the Annex but it essentially says a Donor has no rights to the children created by the donated sperm. [Oregon State Law Section 109.239].

The flaw as I see it is that the intent of the plaintoff was never to be a donor but that his sperm only be used with respect to his wife so how did he become reclassified as a donor? If he is not a donor his rights should not be cut off. I disagree with the defendant's attorney. The appeal does not have to invalidate the law but it does have to attack the application of the law to this plaintiff.