From the Santa Monica Daily Press comes word of a sperm donor who decided he wanted joint custody of a child arising from his sperm donation. When the mother refused, he sued--and lost.

The situation was complicated by a few things. First, the parties, whose names were not disclosed, apparently worked out an agreement on their own, without legal help--or without enough legal help. The contract governing the terms of the arrangment was shaky.

Secondly, the parents had agreed that the father could visit the child occasionally, even though the mother would retain custody.

The father argued that the mother had signed a declaration identifying him as the child's biological father. The mother said she was sedated when she signed it.

Legally, the case is a mess. But it wasn't decided on the basis of the sloppy language in the agreement. And that's where this gets interesting.

The mother's lawyer, Ilene Trabolsi, argued the case on the basis of a statute that said a sperm donor will be treated "as if he were not the natural father of a child thereby conceived." That's interesting language; it affirms that the donor is the natural father, while saying that must be ignored.

According to the Daily Press, "Trabolsi said the case was an important affirmation of mothers' rights at a time when more people are using alternative means to start families. Had Karen been forced to give up full custody of her child, she said, the case might have discouraged other women from using artificial insemination for fear of custody complications with donors."

What is conspicuously missing here is the welfare of the child. Would the child benefit from time with the father? Do we want the law to be so inflexible that such an arrangement isn't possible?

We might guess that the father donated the sperm to earn money, or to help women conceive, or--who knows? The newspaper doesn't say. Neither do we know the circumstances surrounding the mother's decision to have a child. 

But it seems clear that this dispute involved what the father wanted and what the mother wanted--not what the child wanted, or needed. 

The story suggests that the child, a boy, is now a toddler, so he probably isn't able to decide for himself what he wants. Perhaps the state, in the person of the judge, should have represented the child. Perhaps the child should have been assigned an attorney. Perhaps we want the law to protect not only the rights of the mother, but the rights of the child.

Then again, we know, from countless divorce cases, where that would lead us. Far too many family court judges, unwilling or unable to base a decision on an examination of the facts, do what they know in their gut is the right thing--they decide for the mother.

Because that is almost always best for the child, isn't it?

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