Children rights in gamete donation

Children as members of the human community have certain rights, and all schools of law (religious or conventional) recognize these rights. So the way a child is born must not be held as a reason to deprive him/her of part of his/her rights. An important matter concerning donation of gamete (sperm or ovum) is restoration of the rights of those children who are produced from donated sperm or ovum, or, in some cases, born to a surrogate mother. Obviously, if we apply the traditional laws on the rights of naturally-born children in dealing with inheritance, custody, guardianship, alimony, and legitimacy of marriage of those children, we can hardly be successful in restoring their rights. The author in this paper will do his best to come up with appropriate ways of treating this modern phenomenon by reviewing the ideas of religious jurisprudents and, in some cases, jurists. The aim is to present a reasonable method and practical proposals. Hopefully, the results would help in formulating laws and drawing up the necessary bylaws.

Deficiencies of infertile women or women who want to have a child through gamete donation fall into the following categories: 1. the husband lacks fertile sperm and his wife possesses healthy ovum and womb (sperm donation); 2. The husband lacks fertile sperm and his wife lacks fertile ovum but possesses. Healthy womb (sperm and ovum or womb donation); 3. The husband possesses fertile sperm but his wife lacks fertile ovum (ovum donation).

In all the above cases the woman plays her key role in the child's birth: of course, in case (1) she fulfills her function totally (functions related to ovum and womb), and in case (2) she only fulfills the womb function and giving birth to the child. In this paper, the author will argue that both the owner of womb and the owner of ovum can be considered the child's mother. Based on this fact, in gamete donation the child will have a lineage through his/her mother and all his/her rights can be proved and restored. In such cases, the child's mother can assume some of the responsibilities which in case of naturally-born children fall on the father. A husband who is not considered the child's natural father in cases (1) and (2) but wants to have a child through sperm donation must accept some responsibilities for meeting the child's needs and protecting him/her, and even consider resources as a substitute for inheritance in his will. Of courses, this must be within one-third of the father's possessions, or grants in his lifetime. As for the issue of proximity and legitimacy of marriage, arguments concerning foster children can be applied.