CHICAGO - An appeals court said a man can press a claim for emotional distress after learning a former lover had used his sperm to have a baby. But he can't claim theft, the ruling said, because the sperm were hers to keep. "She asserts that when plaintiff 'delivered' his sperm, it was a gift - an absolute and irrevocable transfer of title to property from a donor to a donee," the decision said. "There was no agreement that the original deposit would be returned upon request."
A good discussion of the contours of this case can be found here, one of the consistently interesting Findlaw daily essays.
Another essay deals with another not so typical situation. A pre-op (female to male) transsexual who was undergoing hormonal therapy married a woman, who had a child by artificial insemination. The spouse declared "himself" as the father in a written agreement. Nonetheless, when the marriage fell apart, the wife challenged the marriage -- it was really between two women, so void. And, thus no father existed. The appellate court agreed, especially because he did not completely undergo sex change surgery.
This secondary sexual characteristics technique of determining legal sex, other biological conditions, gender and social actions be damned, is rather questionable. It is not just shown in cases like this, when transsexuals and other "intersex" individuals are involved. Same sex marriages also raise comparable questions. The male-female split is not the only way to go, even when different genders are coming together. For instance, a "butch" and "femme" lesbian, or two gay males each bringing different traditional gender roles to the relationship.
A more complex understanding of sexual and gender relations would help deal with cases like the one discussed in the essay. It would show the ridiculousness of letting certain arbitrary biological markers allow and disallow what in any other situation society would deem normal or downright weird (the person declared not a man in this case looks and acts masculine, but can now legally marry another man).
The cookie-cutter approach has its problems.