Fraudulent Fertilisation

Rocío continued her analysis:

“If we contemplate the problem from a different angle, giving priority to the protection of the minor’s interest, the consequences would be very different. The ministry of minors will say that you, as the biological father, should acknowledge that innocent victim. Perhaps they could show that you did not take minimum precautions to make sure that your sperm had a destination that would impede their illegal use. They could impute that when you had relations with Alicia Sandrelli you didn’t take the precaution of ensuring that your sperm was destroyed. They could criticise you for leaving it irresponsibly in the hands of a woman you hardly knew, all the more so if we consider that she is from a humble background and you have a great fortune. At least, they could say that there was a lack of thought on your part... The baby is an indirect consequence, but in the end it’s a result of your original mistake.”

“Excuse me, doctor, but I think the circumstance of having used a condom, rather than increasing my guilt, diminishes it. Bear in mind that, in this way, I reduced the risk of getting Alicia pregnant. It’s too much to demand that I should have foreseen illicit handling, the fertilisation of another woman.”

“I accept what you say, Doctor Burán, but even so, I think men, from now on, are going to have to start thinking about these things... In any case, I beg you not to think I’m against you. I’m simply trying to put myself in the place of our adversaries, to take advantage of my reasoning.”

The senior Doctor Bareilles intervened, saying, “Look, Roberto, there’s no doubt that we should be careful with everything my daughter’s saying, according to our criteria, it’s logical not to hold you responsible, given the absence of intention on your part and considering that you didn’t really do anything leading to the pregnancy of Juana Artigas. But if it occurs to the judge that you didn’t take appropriate care of your sperm, it would be likely that you would be compromised because of that lack of diligence. In our supposition, the birth of a child that is biologically yours.”

“A very respectable doctrine,” added Rocío, “assures that the current legislative loophole permits the minor to bring a lawsuit for the acknowledgement of the filiation of the man who donates his semen for fertilisation. If we follow this dangerous opinion through, the child of Juana Artigas will have the right to bring a lawsuit against you, even if it has been proved that the mother conceived by artificial means. But even so, Doctor, Burán, my father and I noticed an important difference in our case. Really and truly, when a person donates their sperm, he has at least the intention of procreation, although not that of being compromised as progenitor. But you never even dreamed that your seed was going to be injected to fertilise a woman. I mention this to you, Burán, because a renowned Spanish author, in an interpretation that works in our favour, considers the most important thing to be intention; the resolution of a couple to raise a child as if it was their own child.”

“This is important, Roberto,” said the more experienced Bareilles, “even if the doctrine refers to situations that arise within marriages, not cases like yours, it could serve as an analogy. You will understand that if we give priority to the free choice of incorporating a child, over and above the mere genetic fact, it minimises the importance of the contribution made by the sperm donor. Couples who go in for these fertilisation processes are not normally interested in specific sperm, the important thing is the desire to procreate. They need the seed, but it doesn’t especially have to come form a particular author.”

“It’s true, Doctor Burán,” said Rocío, “we all know that responsible paternity implies much more than a mere biological relationship. Fundamentally, it requires great responsibility, and lots of love. The man who takes the decision to assume the child of another as his own child is more of a father than the provider of the gamete that made insemination possible.”

“It’s unbelievable there’s no precedent of similar cases,” said Burán, “do you think there are any in other countries?”

The lawyer smoothed her hair over her shoulders and answered, “Don’t lose hope, doctor, we’ll look in the digests, we’ll analyse the doctrines, we’ll consult foreign jurisprudence, there must be something. I hope so. The insemination technique, although it’s been known for a quite a long time, has only recently attained such complex connotations.”

Burán listened attentively. He absorbed each concept, every word, but was invaded by a growing disquiet. He couldn’t shake the image of the baby that would soon be born. He asked himself what he would be like, if he would look like him. Finally, he asked, “Excuse me, Doctor Bareilles, a little while ago you said that some doctrinal opinions accept that the child conceived by artificial insemination can demand the acknowledgement of their filiation to the biological father, the simple sperm donor... I ask you, out of curiosity, what would happen in the opposite case? What rights does the sperm donor have over the child?”

Rocío looked puzzlement; for a moment she thought Burán was beginning to take an interest in that child who carried his genes.

“In the classic suppositions,” she answered, “some authors indicate that the simple donor cannot hope to be acknowledged as father of the child conceived by means of an insemination procedure. It is considered that it would be rewarding an act in bad faith. This is thought when the contribution of sperm is made for a married couple to assume as their child the fruit of fertilisation. In these circumstances, the rules of the game are totally clear. He who delivers his gamete knows that he can’t hope to be legally declared the progenitor of the child. He would be depriving the husband of his rights, when he has accepted the insemination of his wife.”

“But, doctor,” asked Burán, “Juana Artigas isn’t married, and neither am I at the moment.”

“Correct, doctor,” she said, “it’s true, these examples are not appropriate. When there’s a married couple and the husband gives his consent, as is natural, it would appear to be prudent that he should be legally considered the father, with the logical exclusion of the sperm donor. Some jurists have declared themselves in favour of the child’s claim procedure against the biological father. We think it’s arguable, given that the donor normally does not want to be considered the legal father and offers his sperm in that knowledge. No mother would want the fruit of her belly to be declared the child of a perfect stranger who occasionally donates his sperm. Don’t forget that once the paternity has been declared, there are resultant obligations and rights. The woman who has given birth would have to accept that a stranger, who by chance donated his sperm, exercises the right to visit her baby, to contribute to its upbringing...”

“OK, doctor,” interrupted Roberto, “You’re referring to different cases, in which the sperm was contributed voluntarily. I never gave my consent for them to use my sperm, nor did I imagine they’d use it. Therefore, what would be the solution in my specific case? Specifically, what rights would I have over the child?”

The beautiful Rocío hesitated.

“Well... Look, doctor, your question is quite complicated... Now, let me think... On the one hand, you’re prepared to defend yourself, saying that you had no intention of engendering Juana Artigas’s baby. You would formulate this approach so as not to be legally considered the father, is that right, Doctor Burán?”

“Yes, I suppose so, at least that’s what I thought,” answered Roberto.

“Look, doctor, if you manage to have the filiation lawsuit against you thrown out, you will have no obligations with regard to the baby, but you won’t have any rights either. It’s a new situation, it’s unforeseen, but this result strikes me as the logical one. What do you think, dad?”

“It’s incredible,” opined the old lawyer. “The multiplicity of situations that life presents us with... Despite fifty years of practising professionally, I had never even imagined that a problem like this could come up. I think Rocío’s right. If you win the case, it will be because they acknowledge that you’re not legally the father, although there is a bond of blood. If so, you couldn’t hope to have rights. The result of the trial, whatever it is, will affect you for better or for worse.”