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Court won’t hear sperm donor suit

Calls on lawmakers to settle legal issues

By John R. Ellement
Globe Staff / October 1, 2009

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The state Appeals Court asked lawmakers yesterday to take on complex legal questions now surfacing about anonymous sperm donors and the children conceived through science.

In a ruling issued yesterday, the court refused to become involved in a Suffolk Probate and Family Court case in which the mother of twin daughters, known only as Jane Doe, is demanding that the New England Cryogenic Center Inc. identify a sperm donor known only as D237.

Jane Doe “seeks disclosure of his identity so that she can institute a paternity and child support claim against him and obtain medical information that may be useful in treating conditions she claims her daughters have developed,’’ Appeals Court Judge James McHugh wrote for a three-judge panel.

“The issues the case raises,’’ he wrote, “are issues of first impression and potentially, at least, have broad ramifications, indeed, ramifications that cry out for legislative treatment.’’

McHugh said the Appeals Court would not address any issue raised by the case because a large number of legal issues remain outstanding, including whether D237 knows that Jane Doe is trying to get his genetic history.

Jane Doe represented herself before the court and could not be reached for comment.

The attorney for the New England Cryogenic did not immediately return a telephone call seeking comment. Case files, including a decision by Probate and Family Court Judge John Smoot, are impounded by court order.

But according to McHugh’s ruling, D237 sold his sperm between 1992 and 1994 when he was in his 20s and a Boston medical student.

D237 signed an agreement vowing not to inquire into the children conceived from his sperm, while New England Cryogenic promised to keep his identity “in strictest confidence.’’

Joyce Kauffman, the attorney for New England Cryogenic, said she is confident the courts will support the view that anonymous sperm donors cannot be parents. “If an anonymous donor is a parent, then there will likely be no more anonymous donors coming forward,’’ she said. “Would you donate if you knew that one or more recipients of donor sperm would come forward and go after you in a paternity action?’’

Jane Doe purchased the sperm in 1999. She was artificially inseminated in a London hospital and gave birth to twin daughters on Feb. 2, 2001. In 2005, she asked New England Cryogenic for D237’s identity, which the center refused to provide. She was evicted from her London home and moved back to the United States, the court said.

In 2006, Jane Doe sought the donor’s identity so he could be required to pay child support and to provide updated genetic information because the twin girls had been diagnosed with “ectodermal dysplasia, from which she claims the twins are suffering and for which genetic information from both parents may be helpful in treating.’’

Ectodermal dysplasia is a group of conditions in which there is abnormal development of the skin, hair, nails, teeth, or sweat glands.

Jane Doe voluntarily placed the twins in the custody of the state Department of Children and Families.

A guardian ad litem, or person appointed by the court to represent the minors, will investigate the health of the girls and undertake a possible search for a genetic link to D237.