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Hastings Law Journal

Authors

Ruth Zafran

Abstract

How should the state treat siblings’ legal relationships in cases where the relationship is based solely on genetics, such as between siblings who were born of the same sperm donor, but did not grow up together? How should it treat siblings who were born to the same family but share no genetic connection at all? These are just two formulations of the type of legal dilemmas arising ever more frequently concerning the legal recognition of siblings who are born to families created by gamete donation. In exploring “legal siblinghood” in donor-conceived families, this Article offers a contribution to the literature on two levels. First, it joins a recent strand of scholarship in family law that has brought legal siblinghood to the forefront. Second, it supplements this literature by framing some of the most fundamental questions arising from the growing phenomenon of siblings who do not conform to traditional notions of siblinghood, specifically those created through sperm donation. This Article brings to the surface legal questions—in some instances, posed here for the first time—regarding the new sibling relationships created by donor-conceived families. It also applies specific terms that pinpoint the nuanced features of such relationships to assist the scholarly and normative debate on their due recognition and protection.

After reviewing the unique aspects of the sibling relationship, its psychological significance, and in particular the different types of affinities that siblings can form in donor-conceived families, I will examine three case studies. These cases exemplify some of the legal dilemmas and difficult questions surrounding the creation of sibling relationships and the maintenance of such relationships over time. Among other insights, these cases surface the significance and implication of different sibling relationship configurations (mainly relational, purely genetic, or a combination of the two), and ask whether different rights should derive from each type, and whether they should enjoy equal levels of legal protection. Taken as a whole, the cases question whether the sibling relationship is necessarily dependent on parents, or can exist without shared parents, and ask what weight we should ascribe to the parents’ say in the forming of such relationships. After addressing these questions in light of the range of sibling relationships (or potential relationships), I outline a preliminary normative approach to them. I make the case for recognizing siblinghood as a distinct legal category, and for assigning it effective protections in the particular case of non-traditional families.

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