Erasing Gender Privilege in Nonconsensual Procreation: An Argument for an Equitable Change to the Law Regarding the Unauthorized Use of Sperm

Sperm stealing—also known as the unauthorized use of sperm—comes in several forms, which fall in three categories: sperm stashing, nonconsensual sexual intercourse, and the improper use of artificial reproductive technology (ART).  Sperm stashing usually occurs through a woman saving sperm from oral sexual relations or a used condom and using such sperm to inseminate herself.  Sperm stealing through nonconsensual sexual intercourse includes rape and statutory rape that results in pregnancy.  Improper use of ART includes a woman obtaining and becoming inseminated with a man’s sperm donation or implanted with fertilized pre-embryos created with his sperm without his consent.  A handful of cases dealing with sperm stealing have made it on to court dockets.  Most have been dismissed, others given the chance to make it to trial, and a clear minority have resulted in favorable verdicts for the man whose sperm was stolen.  Cases that have achieved verdicts, however, are restricted to improper use of ART, creating a class system among the categories of sperm stealing.  Typically, courts favor the policy of child welfare, ensuring the child has the support of two parents and making male rights to reproductive choice insignificant.  In Massachusetts—a state that allowed recovery for a man whose fertilized pre-embryo was used by his estranged wife—a new set of child support guidelines took effect on August 1, 2013, greatly enforcing and emphasizing the policy to favor the welfare of the child at all costs.  It prompts the inquiry of whether these policies may affect this preexisting case law.