Who actually owns sperm donated to a sperm bank - the donor or the woman who paid for the sperm? Can a donor decide to change his mind after receiving payment for his donation? And what is more important, a donor's right to refuse to be a father against his will, or a women's right to have children who are biological siblings? The High Court of Justice will have to rule on these complex and sensitive questions in a petition that might affect the lives of thousands of women who use Israeli sperm banks to fulfill their wish to be mothers.
Four sperm vials - enough for eight fertilization treatments - are at the center of a judicial conflict between the donor who wishes to have his sperm donations scrapped and the recipient who purchased the vials and wishes to use them to have several children from the same father. Surprising as it may sound, there are no legal guidelines regarding sperm donations, and the scenario of the donor reneging is not dealt with in forms filled out by the donor and the recipient, nor in the directives of the Health Ministry.
The state has already chosen position, as is reflected in its answer to the High Court, received several days ago: The donor, who has since became religious and changed his way of life, can change his mind, even years after the donation, in spite of the fact that he was paid for his donation, and that the recipient depended on his sperm so that her children would be biological brothers. The reasoning behind the state's answer is that the donor's right not be a father against his will is stronger that the recipient's wish to have children who are biological siblings.
The case - termed unique and precedential by Health Ministry senior officials - began when Michal (not her real name ), an Israeli living in the United States with her young daughter received a phone call from the Rambam Medical Center sperm bank, informing her that the donor, the biological father of her daughter, has since become religious and requested that no further use be made of his sperm, and therefore his remaining sperm vials will be destroyed.
Michal, who had purchased five vials - the maximum number allowed - and was planning another pregnancy two months later, immediately wrote an e-mail to Avi Leitman, director of the Rambam sperm bank. "I was amazed and shocked. I have a 19-month-old daughter from the same donor and I made a point of paying to keep the other vials since it's very important to me that my daughter would have biological siblings. No one ever told me that the donor has a right to change his mind, or that the sperm bank would agree to such a request."
Leitman's spontaneous response was to accept Michal's position, as can be deduced from the donor's e-mail to Rambam, enclosed in the petition. "Several months ago I requested that you refrain from further using my sperm. At first I was told that I don't have such a right, but after a medical-judicial examination, I was told that I do have a veto right, in spite of the contract between us."
Leitman's next mail to Michal proves that the sperm bank was clearly unprepared for such a scenario: "We, too, had no idea that a donor could change his mind, and we never dealt with such a precedent." Still, the rest of Leitman's frank response left no doubt about his position. "We refered the donor's request to the legal advisor of the Health Ministry. His response was that the donor's agreement was not 'eternal' and a donor could change his mind anytime as long as an 'irreversible' situation wasn't created. In our opinion, this isn't such a situation, despite your wish to have a biological sibling for your daughter."
Leitman offered to reimburse Michal for the years she paid to keep the sperm vials, and agreed to her request not to destroy the remaining vials until a court ruling was reached. Michal petitioned the High Court of Justice, claiming that the Health Ministry and sperm bank's decision was unreasonable, and damaged her rights "as a woman, an individual, a mother and a signatory of an agreement."
Michal's legal arguments, argued by her attorney Gali Nagdai, are varied. Firstly, she claims her right to parenthood was damaged, since the Health Ministry forced her to change her plans. Secondly, this is not a case of "forced fatherhood," since the donor is only a donor, and isn't legally the child's parent. Furthermore, since the donor agreed to donate his sperm, signed a form and received payment, his request constitutes a breach of contract. The petition also claims that her daughter too is damaged by the decision, negating her right to have biological siblings. Michal also argues that the decision may have grave repercussions on all women who use sperm donations. If the state allows the donor to change his mind, both married and single women might decide to rush their decision to have children, since they "will live with the fear that the donor might change his mind."
The state insists that the donor has a right to change his mind, despite the fact that his sperm was purchased by the woman, and claims that Michal's right to parenthood isn't compromised, but rather her will to have children who are full biological siblings - which isn't recognized as a legal right. The donor's wish not to be forced to be a father is stronger than her wish to have children who are biological siblings. The state underlines the reversibility of the donor's decision. "This isn't a case where the recipient cannot have children from another sperm, but a case where the woman wishes to impose parenthood on a certain individual despite having the possibility of using other donors' sperm." As for the payment to keep the vials the state answered that the payment secures, at most, her right of precedence to use the sperm before other women, "but the payment does not secure the right to use the sperm."
