Download - Artificial Insemination, In Vitro Fertilization, Embryo

chapter 13

Legal Considerations:Artificial Insemination, In Vitro

Fertilization, Embryo Transfer, andGamete Intrafallopian Transfer

CONTENTS

PageStructure of Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ..240Artificial Insemination by Husband . . . . . . . . . . . . . . . . . . . . . . ................241

Improper Handling of Sperm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241Disposal of Sperm After Husband’s Death . . . . . . . . . . . . . . . . . . . . . ..........242

Artificial Insemination by Donor . . . . . . . . . . . . . . . . . . . . . ...................242Physician Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., .. ...244Marital Status of the Recipient . . . . . . . . . . . . . . . . . . . . . ...................246Requirements for Consent of Recipient’s Husband . . . . . . . . . . . . . . . . . . . . ....246Husband’s Rights and Duties to the Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,246Legal Status of Resulting Children . . . . . . . . . . . . . . . . . . . . . ................246Requirements for Consent of Donor’s Wife. . . . . . . . . . . . . . . . . . . . . . . . . . ....246S p e r m D o n o r ’ s R i g h t s a n d D u t i e s t o t h e C h i l d . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4 6Professional Responsibility for Screening Sperm. . . . . . . . . . . . . . . . . . . . . .. ...248Recordkeeping and Confidentiality . . . . . . . . . . . . . . . . . . . . . . ...............249

In Vitro Fertilization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , ., . ............250Control Over Disposition of Embryos. . . . . . . . . . . . . . . . . . . . . . .............250Juridical Status of the Extracorporeal Embryo . . . . . . . . . . . . . . . . . . . . . . ....253Later Implantation for Same Couple . . . . . . . . . . . . . . . . . . . . . . . . . . . ........253Trusts and Estates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .........254

Gamete Intrafallopian Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .255Embryo Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ..,255

Existing Legislative Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..256Professional Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....257E m b r y o D o n o r ’ s R i g h t s a n d D u t i e s t o C h i l d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5 7R e q u i r e m e n t s f o r C o n s e n t o f O v u m D o n o r ’ s H u s b a n d . . . . . . . . . . . . . . , . . . . . . 2 5 8E m b r y o R e c i p i e n t ’ s R i g h t s a n d D u t i e s t o C h i l d . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5 8

Res t r i c t ing or Regula t ing the Sa le o f Gametes or Embryos , . , . . . . . . . . . . . . . . . . 259Models of State Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..................261Summary and Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ...262Chapter 13 References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......262

BoxBox NO. Page13-A. Summary of State Laws That Specifically Address In Vitro Fertilization. ..252

TablesTable No. Page13-1. State Statutes—Artificial Insemination. . . . . . . . . . . . . . . . . . . . . . ..........24313-2. State Statutes—Fetal Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....251

Chapter 13

Legal Considerations:Artificial Insemination, In Vitro Fertilization,

Embryo Transfer, and Gamete Intrafallopian Transfer

This chapter reviews the legal rights and dutiesrelated to a variety of the infertility treatment andcircumvention techniques discussed in this assess-ment. In many cases, the techniques are so newthat little or no guidance is available on how thelaw will be applied. There is, however, a greatdeal of speculation in the legal literature, alongwith a wealth of inadvertently and peripherallyrelated legislation and case law based on princi-ples that may have some application in the areaof new noncoital reproductive techniques.

The established medical and surgical techniquesfor treating infertility do not raise unusual legalproblems. They fall squarely within the largerarea of medical and public health laws, whichencompass questions of informed consent andprofessional standards of practice. Noncoital re-productive technologies, however, challenge tra-ditional legal thinking by introducing two novelfactors into human reproduction: the extracor-poreal embryo and the child of up to five parents:genetic mother, gestational mother, rearingmother, genetic father, and rearing father.

The conflicting interests of the many parties innoncoital reproductive technologies are difficultto adjudicate. First, some techniques separate theconcept of ‘(biological mother,” traditionally a uni-tary term, into two component parts: the genet-ic mother and the gestational mother. Existing le-gal models of the role of the purely geneticconnection between parent and child have beenworked out in the context of fathers, not mothers.For example, a genetic connection between a manand a child will render him legally and financiallyresponsible for the child, absent a formal legalintervention such as adoption (17,38). The inten-tions of the man to produce offspring or not areirrelevant.

This legal outcome protects the interests of thechild, and explains the one general exception to

this rule, i.e., that a child born to a marriedwoman is presumed to be the child of thewoman’s husband, regardless of the genetic real-ities of the situation. This “presumption of pater-nity” is common in State legislative codes (9,45).Provided that the child has two parents, the lawwill then consider other interests, such as sanc-tity of marriage, when adult responsibilities forchild care are allocated. Note that the emphasison genetic relationships with men is based on theself-evident fact that men are incapable of anyother sort of “biological” relationship.

Similarly, a fairly coherent body of law outlinesthe rights of “biological” versus “rearing” mothersin the context of adoption (17). Never before, how-ever, have the component rights and responsibil-ities associated with gestational versus geneticrelationships been delineated, let alone balancedagainst those of social mothers and fathers.Models of responsibility based on male biologi-cal linkages may well be inadequate to cover thecomplexities of female biological linkages, whichcan entail a gestational relationship as well as onebased on genetics.

A second problem is that many of these tech-niques involve extracorporeal gametes or em-bryos. The still imperfect national consensus onthe status of unborn children affects reproduc-tive technologies, as questions arise concerningthe management of unimplanted embryos. Where-as the abortion issue is complicated by the rightof an adult woman to control the physical stateof her body, the extracorporeal fertilized eggraises the narrower issue of embryo rights. Ifsuch rights are found to exist by virtue of the U.S.Constitution or are created by legislative action,then the course of reproductive biology researchand treatment will be profoundly affected by limi-tations on actions that might harm an embryo.

239

240 ● Infertility: Medical and Social Choices

Finally, new reproductive technologies raise ahost of issues that are familiar to the law, but thatrarely have been seen in such a tangled combina-tion. These include equal access to reproductiveservices by the poor, the unmarried, and thehomosexual; the rights of children with respectto their biological and social parents; the use ofcontractual arrangements to govern parental rela-tionships; and the role of governmental and com-mercial interests in areas typically viewed as pri-vate. The arrangements facilitated by noncoitalreproductive techniques invite a fresh consider-ation of the legal significance of genetic and so-cial connections between parent and child, andalso invite a review of the legal obstacles to theformation of nontraditional family groupings.

STRUCTURE OF

Both Federal and State law will affect the sta-tus of noncoital reproductive technologies. TheFederal Government has limited powers, i.e., onlythose powers granted by the U.S. Constitution,with all residual powers falling to the States orthe people (Ioth Amendment), As a result, Statesgenerally have the authority by judge-made law(also known as common law) or by State legisla-tion to protect the public health, safety, andmorals. It is on this basis that States have the au-thority to regulate familial relations, includingmarriage, divorce, adoption, inheritance, andparental duties.

In addition, contracts are generally regulatedby State statute. Thus, contracts to arrange fora surrogate mother would be subject to State lawrules governing interpretation or enforceabilityof the agreement. As each State is free to writeits own laws, a contract may have differing de-grees of enforceability from State to State (32).Some States may consider certain contractual ar-rangements as entirely void because they are con-trary to public policy, such as, for example, a con-tract of marriage between an adult and a minor.Another State might consider the contract void-able, i.e., the contract may be voided upon requestof one of the parties. In many cases, the requestto void a contract may come only from the vul-nerable party to the transaction, in this case theminor. Finally, some States may find no public pol-

This chapter summarizes the legal issues raisedby the use of artificial insemination, in vitro fer-tilization (IVF), embryo transfer, and gamete in-trafallopian transfer (GIFT). These techniqueshave in common the possibility of an extracor-poreal embryo or the use of sperm or egg donors.Situations in which a woman gestates a child withthe intention of relinquishing her parental rightsat birth are examined in chapter 14. Overarch-ing constitutional issues concerning the right toprocreate, personal autonomy, the commerciali-zation of procreation, and nondiscriminatory ac-cess to noncoital reproductive techniques are dis-cussed in chapter 12.

APPLICABLE LAW

icy reason to treat a contract in any special way,and therefore hold the contract enforceable ac-cording to the general laws of the State.

The distinctions made among void, voidable,and enforceable contracts are important in thecontext of surrogate motherhood arrangements,which may offend public policy in some States.Others might view either the surrogate motheror the infertile couple as a particularly vulner-able party who may initiate an action to void thecontract. Thus, the enforceability of these con-tracts will likely vary around the country. Evenwith a definitive statement from the Federalcourts that part or all of these transactions areconstitutionally protected, individual State regu-lations may differ considerably.

Another applicable section of State law isknown as torts, which governs most noncontrac-tual situations in which someone harms another.The two most important areas of tort law coverintentional harms-e.g., intentionally touchingsomeone’s body without consent—and uninten-tional harms. Often the latter are caused by negli-gence, which occurs if someone behaves in an un-reasonable way that breaches a duty of care owedto someone else, and thereby causes harm, A rele-vant example would be a physician mistakenlyremoving a healthy ovary rather than a diseasedovary scheduled for removal. After having the dis-

Ch. 13–Legal Considerations: Artificial Insemination, IVF, Embryo Transfer, and GIFT ● 241

eased ovary removed, the woman could sue fordamages to compensate for the additional sur-gery, for the resulting infertility, and for her painand suffering.

Federal law can touch on some of these sameissues if the activity involved is partly or whollyfunded by Federal monies. A hospital, for exam-ple, though regulated by a State Department ofHealth, may also be subject to conditions on anyFederal money it receives through Medicare orMedicaid. These conditions on the receipt of Fed-eral money are a kind of Federal regulatory mech-anism. The Federal Government also has thepower to regulate interstate commerce. A physi-cian may be subject to State licensure and dis-cipline laws, but if the physician opens up a na-tionwide business with many offices, the businessitself may be subject to Federal regulations. Thiscommerce power of the Federal Government hasbeen interpreted liberally in recent years, and canserve as the basis for extensive regulation whenan activity is interstate in nature, or when it hasan effect on interstate commerce (76).

Not only can Federal regulatory powers affectthe operation of a State activity, but Federal con-stitutional protections may affect the structureof State laws. For example, a State law regulat-ing adoption may specify that single-race homesare to be given preference to mixed race homeswhen placing children. Federal constitutionalguarantees of equal protection under the laws,however, may void such a requirement as unrea-sonably discriminatory (76), This and otheraspects of Federal constitutional law affecting the

limits of permissible State legislation concerningreproductive technologies are discussed in chap-ter 12.

In general, Federal constitutional law is superiorto Federal statutory law, which in turn is gener-ally superior to State statutory or common lawif there is a direct conflict (33). State constitutions,however, can go further than the Federal constitu-tion in their protections, and thus forma separatebasis for attacking a State law as discriminatory,even if the Federal constitutional interpretationsfind the law nondiscriminatory (76).

A lawsuit based on an area of State law, suchas contract, tort, or family law, will generally beheard in a State court. However, if the parties tothe litigation come from different States and ifmore than $15,000 is at stake, a Federal court mayhear the case (33). This does not mean that Fed-eral law will be applied to the case; Federal com-mon law on these topics generally does not exist(31). Rather, the Federal court will determinewhich State’s laws ought to apply, using the prin-ciples of “choice of law” (4i’). The decision is nota trivial one, as certain activities maybe governedin entirely different ways in one State or another.For example, the practice of surrogate mother-hood is now interstate in nature, with surrogatesand intended social parents often coming fromdifferent States. In the event that one State wereto explicitly legalize surrogate motherhood andanother to forbid it, choice~of-law principles mightdetermine the outcome of a Federal court’s deci-sion with respect to a surrogacy contract.

ARTIFICIAL INSEMINATION BY HUSBAND

Artificial insemination by husband commonly requirements that a physician perform the insemi -refers to artificial insemination in which the nation. Finally, cryopreservation of semen maysemen is provided by the recipient’s partner, lead to physician or laboratory liabilities whenwhether or not she is married to him. This form storage facilities are not properly managed.of insemination is relatively uncomplicated legallybecause no third party is involved; the sperm Improper Handling of Spermdonor is the intended parent of the child. Never-theless, certain problems can arise, for example, Negligent handling of sperm can give rise towith respect to disposition of sperm left frozen professional liability if it causes harm. Further,after a man’s death. Furthermore, artificial insemi - to the extent that sperm are the property of anation by husband may be subject to State law man, with a physician storing or using them as


per the man’s directions, a physician could beviewed as a bailee, i.e., someone charged with theresponsibility of caring for the property ofanother (59). In this capacity, the physician onceagain must be reasonably careful. Damages, how-ever, are likely to be quite small for any loss ofsperm or sperm viability, as the sperm can bereplaced at little expense and without dangerousor invasive procedures.

One exception is the loss of irreplaceable sperm-e.g., sperm stored prior to irreversible sterili-zation. In 1987, suit was brought by a couplewhose frozen sperm was damaged during tran-sit from the cryobank to the site of insemination.The husband, who had stored the sperm beforeundergoing radiation and chemotherapy, couldnot replace the semen, and sued for his irrevoca-ble loss of ability to genetically parent a child (81).

If the sperm is lost after the death of the hus-band, and the widow seeks damages for the loss,the damages might also be high, as the loss is againirrevocable. In this case, however, the widowwould have a right to recovery by virtue of herentitlement to her husband’s property; if spermare not considered ‘(property, ” she may have noright to recover at all.

Disposal of SpermAfter Husband’s Death

No State statutes specify whether frozen spermremaining after a man’s death are to be consid-ered property of the estate, thereby passing toheirs by his will or by State law. Nor are spermclearly considered property of the widow, to beused for impregnation or destroyed, per her re-quest, or as abandoned property reverting to theinstitution or the State. In the only case to dateon this subject, a French woman successfully suedin French courts to recover her late husband’ssperm in order to bear a child of his. The court

declined to consider the sperm as an object of acommercial contract, or as a donated organ sub-ject to existing French regulations. Rather, it saidthat sperm deposition created an obligation forconservation and restitution, and that the widow’sfamily established “without equivocation the for-mal will of Corinne’s husband to make his wifethe mother of a common child, whether the con-ception of this child happened while he was liv-ing or after his death” (26).

Assuming that a woman uses the frozen spermof her late husband in order to have a child byhim, a problem develops with respect to the‘(after-born” child-one born after the death ofhis or her parent. Ordinarily, after-born childrenare the legal offspring of the deceased parent, en-titled to inherit along with the rest of his children.In this case, however, the child is not only bornbut conceived after the death of its genetic father.Considering such children as the legal offspringof the deceased father creates a number of trustand estate difficulties, most of which are purelyinternal aspects of State law and beyond the scopeof this report (49,75).

One obvious problem is that it makes ambigu-ous the typical language “to my children” as usedin wills. The possibility of an after-conceived childwould make this class of children open to addi-tions much longer than the current 9 months fol-lowing death, thus making it impossible to pro-bate a will expeditiously. Similar problems couldarise with respect to frozen embryos, with the deathof one or both genetic parents no longer an in-superable obstacle to bringing the child to term.

Louisiana law, which touches on the subject ofinheritance rights of IVF embryos, states that theembryo will have such rights at the time of itsbirth. The law places no time limit on this right,and so opens the way for inheritance rights inchildren whose fathers have died many years be-fore they were brought to term.

ARTIFICIAL INSEMINATION BY DONOR

Sperm donation—the oldest of noncoital tech- in statutes in some 30 States (see table 13-1). Ofniques–has existed as a therapeutic option in the these, eight appear to be modeled on the UniformUnited States since about 1950 and has resulted Parentage Act. Others share some common lan-


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guage, but vary widely in their precise wording,ranging from a detailed code to a terse statementof their intended legal effect.

Despite the variation in wording, all artificialinsemination by donor statutes make clear thatthe offspring of donor sperm shall be treated asthe legal offspring of the consenting husband forlegitimacy, inheritance, and support purposes(28,40,41,57). Sometimes the legal implications aredirectly specified; in other cases they arise by im-plication from designation of the offspring as thenatural or legitimate child of the consenting hus-band. Sometimes this effect is certain only if theprecise statutory conditions are satisfied, leavingopen the consequences if statutory conditionsconcerning physician, marital status, and the likeare not met, The result is that many questionsare not answered by clear statutory language,leaving the parties to act on legal predictions ofvarying certainty.

The artificial insemination by donor laws ap-pear to follow and implement a contractual ap-proach to offspring status when donor, recipient,and recipient’s husband agree that the husbandshall assume all rearing rights and duties and thedonor none. It maybe that this model will be fol-lowed for donor sperm transactions that do notfollow all statutory specifications, for artificial in-semination by donor in States without specific leg-islation, and for egg and embryo donation as well,though this will depend on court interpretationand future legislation.

Although these statutes operate to legitimateoffspring of donor sperm, they fail to grapple witha number of potential problems discussed in thissection, such as limiting the number of offspringper donor, screening for infectious and geneticdiseases, clarifying the legal consequences of useby a single woman, and maintaining adequaterecords.

Physician Requirement

Twenty-one’ of the thirty artificial insemina-tion by donor statutes provide that offspring are

‘Alabama, Arkansas, California, Colorado, Connecticut, Georgia,Idaho, Illinois, Minnesota, Montana, Nevada, New Jersey, New Mex-ico, Ohio, Oklahoma, Oregon, Virginia, Washington, Wisconsin,Wyoming.

the legitimate children of the consenting husbandwhen the insemination is done by a “licensed phy-sician,” “certified medical doctor,” or person “dulyauthorized to practice medicine. ”

In States with this specification, the legal effectof insemination by someone other than a physi-cian, such as husband, lover, donor, friend, fam-ily member, or even medical technician, nurse,or physician’s assistant, may be uncertain. Statessuch as Ohio avoid this confusion by tatingexplicitly that failure to have insemination per-formed under the supervision of a physician willnot prevent the child from benefiting from thelaw’s legitimization provisions. This would prob-ably be the result obtained by judicial decisionin States without such clarifying language (48).

Ambiguities in the statutes raise questions asto whether inseminations done without the re-quired physician supervision have different legalconsequences (43). For example, in the JhordanC. case, the lack of physician-supervised insemi-nation was one factor that persuaded the courtto permit the sperm donor to have visitationrights. That case was complicated, however, bythe fact that the mother was unmarried but liv-ing with another woman who also was to havevisitation rights.

In the nine States that do not specify physicianinsemination, State laws against the unauthorizedpractice of medicine might nevertheless make itcriminal for third parties to inseminate. In Geor-gia, Florida, and Idaho it is specifically a crimefor someone other than a physician to do theartificial insemination. Nevertheless, these lawswould not affect the enforceability of the parties’agreement concerning rights and duties towardthe offspring.

The reasonableness of State laws that directlyor indirectly require a physician to perform arti-ficial insemination is questionable. The techniqueitself can be quickly learned and needs no spe-cial equipment. Limiting vendors who screen se-men from anonymous donors to those with medi-cal expertise may be easily justified (see ch. 9);similarly limiting those who use this screened se-men for themselves alone is more difficult to ra-tionalize.

Ch. 13—Legal Considerations: Artificial Insemination, IVF, Embryo Transfer, and GIFT 245

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Photo credit: Library of Congress

Nineteenth Century Marriage Certificate

246 Infertility: Medical and Social Choices

Marital Status of the Recipient

No statute explicitly makes it illegal for an un-married woman to be artificially inseminated.However, most State artificial insemination bydonor laws, directly or by implication, addressthe status of offspring where the husband con-sents to the insemination, thus leaving open thequestion of how the statutory provisions will haveeffect if there is no husband. when a consentinghusband is present, these statutes cut off thesperm donor’s rights of fatherhood and grantthem instead to the consenting husband. Not allstatutes are as clear as that of Ohio, which pro-vides that even if no husband is present, spermdonor’s rights and responsibilities will be cut offautomatically. Another question is whether thesperm donor may sue to have these rights andresponsibilities reinstated. Donors known to therecipients have successfully sued for rights offatherhood when no husband is present (20,43).

Requirements for Consentof Recipient's Husband

All the statutes require that the husband con-sent for the offspring to be treated as his legiti-mate or natural child and for him to take on rear-ing rights and duties. Some States specify that theconsent be in writing, four require that it besigned by both husband and wife (Alabama, Cali-fornia, Illinois, Ohio), and several States requirethat it be filed confidentially with the State healthdepartment. The penalty for failure to obtain thehusband’s consent is often unclear.

Husband’s Rights andDuties to the Child

The only possible exceptions to the husband be-ing the legal father of the resulting child may bein situations in which the recipient failed to ob-tain her husband’s consent, as previously dis-cussed, or when the recipient is in fact planningto relinquish the child to the genetic father (i.e.,the recipient is a surrogate mother). In the lattercase, a contractual agreement ordinarily purportsto rebut the presumption of paternity or to ex-empt the parties from the statutory legitimationof the artificial insemination by donor laws.

Whether such a contractual effort works will de-pend on the particular laws of the States in whichthe parties reside, and whether surrogate parent-ing contracts will be recognized by those Statecourts (see ch. 14).

Legal Status of Resulting Children

The offspring’s status as the natural or legiti-mate child of the consenting husband brings intoplay the State law concerning rights and dutiesthat fathers owe their natural or legitimate chil-dren, and affects the offspring’s right to supportand inheritance. With artificial insemination bydonor, this status means that the consenting hus-band is listed on the birth certificate and has rear-ing rights and duties. The offspring inheritsthrough him either by will or intestacy laws andnot through the donor, The donor loses explicitlyor by implication of law the usual rights andduties of a natural father.

Requirements for Consent ofDonor’s Wife

None of the 30 artificial insemination by donorstatutes require a man to obtain his wife’s con-sent before donating sperm, and thereby commit-ting an act intended to produce offspring outsidethe context of his marriage. This stands in con-trast to the requirement that a wife obtain herhusband’s consent before undergoing artificial in-semination, required by every statute (9). One ra-tionalization for the distinction is that the spermdonor will probably not be legally or financiallyresponsible for the offspring, at least if he doesnot subsequently seek recognition as the fatherof the child.

Sperm Donor’s Rights and Dutiesto the Child

By direct statement or clear implication, all 30State artificial insemination by donor laws removefrom the donor any rearing rights and duties tothe offspring when the statutory provisions aremet. Sometimes this is stated directly; sometimesit occurs by clear implication from recognitionof the consenting husband as legitimate or natu-ral father. Presumably this is the donor’s wishes

Ch. 13–Legal Considerations: Artificial /insemination, IVF, Embryo Transfer, and GIFT ● 247

in those cases as well, thus implementing the con-tractual agreement among the parties. This ar-rangement helps to ensure an adequate supplyof donors, for otherwise each would be subjectto an unknown number of claims on his finan-cial and emotional resources at some indeter-minate time in the future.

The situation can be different, however, in thecase of a known sperm donor. In the New Jer-sey case of C.M. v. C. C., a man provided spermto his still virginal fiance'e, who desired a childby him prior to marriage. After the birth, the en-gagement was broken off. The father sued forvisitation rights, which were contested by themother. The court held that in the absence ofanother male parent for the child, and in light of

conflicting evidence of the parties’ original inten-tions, it was in the best interests of the child andof the State to preserve a two-parent arrange-ment, even if the parents were unmarried (20).

Decisions such as these demonstrate the strengthof the judicial interest in ensuring two legal par-ents to a child born as a result of artificial insemi-nation. They also explain, however, the reasonfor the demand for anonymous artificial insemi-nation by donor among single and lesbian women.Obtaining sperm from a friend rather than froman anonymous donor means that there always ex-ists the possibility of continued involvement bythis friend in the lives of the mother and child,or even of a custody battle (43). Yet for thesewomen the very reason for using artificial insemi-

1. Bride 2. Groom 3. Groom’s daughter from first marriage 4. Bride’s mother5. Bride’s mother’s current lover 6. Bride’s sperm donor father 7.&8. Spermdonor’s parents who sued for visitation rights to bride 9. Bride’s mother’slover at time of bride’s birth 10. Groom’s mother 11. Groom’s mother’sboyfriend 12. Groom’~ fath& 13. Groom’s stepmother 14. Groom’s father’sthird wife 15. Groom’s grandfather 16. Groom’s grandfather’s lover 17.Groom’s first wife

SOURCE: Signe Wilkinson, Philadelphia Daily News (from San Jose Mercury News),


nation by donor is to avoid such entanglements.Thus, use of sperm banks and anonymous donorsremains the surest way for such women to achievepregnancy without requiring a sustained involve-ment with a man. This fact brings into focus whyphysician reluctance to provide artificial insemi-nation by donor services to singles and lesbiansposes such a troubling dilemma to these women.

An important question left open by most arti-ficial insemination by donor laws is whether par-ties may actually agree in advance that the donorwill have rearing rights and duties toward the off-spring. This will be of special importance whenthe donor is providing the sperm as part of a sur-rogate arrangement, whereby the donor and hispartner will have a child to rear who is geneti-cally related to the donor. One Arkansas statutedoes provide for this eventuality (see ch. 14). Itwill also be important when the recipient is un-married and wishes to share parenting rights andduties to some limited extent with the donor.

Although most statutes do not provide for thelatter contingency, New Jersey, New Mexico, andWashington specifically allow the donor and re-cipients to provide that the donor will have suchrights and duties as the parties agree on. How-ever, it is not clear that the parties will be ableto change legitimacy and inheritance implicationsof artificial insemination by donor when a con-senting husband is present, even if they mayagree not to omit the donor altogether from rear-ing rights and duties. Even the New Mexico stat-ute has some ambiguity, as it does not directlyaddress the possibility that the recipient in thiscase is married, with a consenting husband whowishes to share in recognition of the child.

Professional Responsibilityfor Screening Sperm

Only 3 of the 30 State statutes address donorscreening. Idaho and Oregon have statutesdirected at the donor, making it a violation orcrime for a man to become a donor if he knowshe has a venereal or genetic disease. Ohio’s stat-ute requires a full physical examination and amedical and genetic history, and includes a listof suggested tests for specific infectious andgenetic diseases. Generally, however, the artifi-

cial insemination by donor statutes do not addressa physician’s duty to screen donors to preventtransmission of venereal or genetic diseases to therecipient and to offspring. Only Idaho and Ohiorequire physicians to quarantine frozen semenand to screen the donors for human immunodefi-ciency virus (HIV). .

A 1978 survey indicated that many physicianswere inadequately screening donor sperm forgenetic and sexually transmitted diseases (23).This survey sparked a flurry of journal articlesand conference discussions on ways to improvescreening practices and to avoid liability for poorscreening (6,7,8,13,14,51)65). Physicians andsperm banks have somewhat improved theirscreening practices, particularly with respect tosexually transmitted diseases (80). For example,the vast majority of sperm banks now quarantinesperm while doing followup testing on a donor(64,80). This is important for identifying donorswho are seropositive for HIV antibodies, as suchresults may show up months after the donor wascapable of transmitting the virus through his se-men (see ch. 9).

In general, physicians are held to reasonablestandards of care in their screening for geneticand sexually transmitted diseases. “Reasonable”is a flexible term in the law, and in this case wouldreflect that level of care common among similarlysituated professionals. Failure to exercise suchcare would be malpractice, and could leave thephysician liable for the physical and emotionalharm resulting from the transmission of the dis-ease (see ch. 9). For example, in 1987 a Califor-nia woman brought suit claiming that she suf-fered from cytomegalovirus (CMV), a mild diseasein adults but one that can cause birth defects inchildren, as a result of using semen from a spermbank that screened for many infectious diseasesbut not for CMV (15,83). A court would be freeto evaluate whether the sperm bank’s screeningprotocols were “reasonable.”

The American Association of Tissue Banks andthe American Fertility Society (AFS) have issuedguidelines on gamete donation and operation ofsperm banks (1,3)5), and the American College ofObstetricians and Gynecologists endorsed the AFSguidelines (2). Such guidelines are voluntary, but

.— ——

Ch. 13—Legal Considerations: Artificial Insemination, IVF, Embryo Transfer, and GIFT 249

may be considered strong evidence of at least aminimal level of professional responsibility forscreening, should a court consider a malpracticeclaim on these grounds. However, adherence tothese standards is not necessarily evidence of rea-sonably prudent practice of medicine; courts haveat times found that an entire industry or profes-sional group has been failing to meet such a stand-ard (see ch. 9).

The AFS guidelines, for example, did not until1988 recommend that all use of fresh sperm bediscontinued, even though only frozen, quaran-tined sperm can be eventually judged certain tobe incapable of transmitting HIV. Instead, the1986 AFS guidelines proposed a series of carefulsteps to be taken to help judge whether a donorposes any risk. The AFS guidelines are periodi-cally reviewed, and were amended in early 1988to express a preference for the use of frozen,quarantined semen only (58); past guidelines madeno such recommendation. Should someone havecontracted acquired immunodeficiency syndrome(AIDS) from fresh semen donated in accordancewith the previous AFS standards, a court wouldbe free to evaluate whether those procedureswere in keeping with then-common practice andreasonably prudent. This determination couldwell be affected by recent reports that at leasttwo sperm banks have had donors “seroconvert”during the quarantine period—i.e., donors testedpositive for exposure to HIV soon enough afterhaving donated sperm that it is possible they wereinfectious at the time of donation (66,69,83) (seech. 9).

In early 1988, the Centers for Disease Control,coordinating with the Food and Drug Adminis-tration, recommended that all donor semenshould be frozen and quarantined, so that donortesting for HIV could take place both at the timeof donation and 6 months later (see ch. 9). A phy-sician’s failure to comply with this Federal recom-mendation would probably be considered negli-gent by a court. Compliance would not necessarilypreclude a finding of negligence (see ch. 9), butwould be strong evidence of reasonable practice.

A sperm donor who fails to report a genetic orinfectious disease that might harm the recipientor child may well be violating a common-law duty

of care to these parties. The general lack of rec-ordkeeping in current artificial insemination bydonor practices makes it impossible for most re-cipients to trace their donors in order to complainof such behavior, but should that situation change,sperm donors might conceivably find themselvesresponsible for deliberate or negligent mis-representation of their health. For example, in theCalifornia suit over CMV infection via artificial in-semination, the plaintiff sought a court order toopen the sperm bank’s records in order to iden-tify the sperm donor, who has been included asa defendant in her suit. Although the Californiacourt hearing the case denied the request, simi-lar suits could be brought in other jurisdictions.

Recordkeeping and Confidentiality

Fourteen z State artificial insemination by do-nor statutes specify that the written consent ofthe recipient and her husband be filed with theState health department, to be kept confidentialexcept in response to a court order. A few States,such as Ohio, require the physician to keep thesigned consent forms sealed and confidentialrather than file them with the State. In some casesthe registration requirement applies only after thebirth of the child. The inseminating physician isrequired to file the forms only if the physicianis aware of the birth, which may not occur ifanother physician delivers the baby. Thus someStates make clear that failure to follow the rec-ordkeeping provisions does not affect the alloca-tion of rearing rights and duties otherwise rec-ognized in the statute.

Adoptees have argued that a person has a rightto know the identity of his or her biological par-ents (60), claiming that issuing birth certificateswith adoptive parents’ names unconstitutionallydiscriminates against adoptees, and violates theirright to privacy (see ch. 12). Their arguments havebeen unsuccessful, so it seems unlikely that chil-dren conceived with anonymous donor spermwill have any more success objecting to proce-dures to guard the identity of their genetic

‘Alabama, California, Connecticut, Idaho, Kansas, Montana, NewMexico, Nevada, Ohio, Oklahoma, Oregon, Washington, Wisconsin,Wyoming.

76-580 - 88 - 9 : QL 3

250 . Infertility: Medical and Social Choices

fathers. Further, identification of the donor’s iden- adoptees with nonidentifying information con-tity may discourage many men from offering to cerning the health, interests, and ethnic back-become sperm donors, thus reducing the supply ground of the biological parent (61), and such stat-of semen for artificial insemination. However, utes could be held to apply or be extended tomany States have passed legislation to provide cover children of sperm donor fathers.

IN VITRO FERTILIZATION

Although used in an estimated 169 programsnationwide, little statutory regulation exists onIVF. Only two State statutes, those of Pennsylvaniaand Louisiana, explicitly address therapeutic IVF.Fetal research statutes do not appear to havemuch of an impact, despite broad language insome that might be deemed to apply to embryos(see apps. C and F). There seem to be no statu-tory restrictions on IVF with egg and sperm pro-vided by the intended social parents. Couplesprobably have a legal right to resort to IVF or todonate embryos to others, and, except in Loui-siana, to discard unwanted embryos. They alsoappear to face no legal barriers, other than re-strictions on research, to freezing their own em-bryos for later use by themselves.

Control Over Disposition of Embryos

States with laws regulating fetal research useterms such as “embryo,” “product of conception,”and “unborn child” that could be read to includepreimplantation embryos (see table 13-2), raisingthe question of whether the statutory use of theseterms might restrict clinical use of IVF and anyof its variations. Further, five States have nowadopted laws aimed specifically at IVF researchor therapeutic applications (see box 13-A). At issueis whether any legal constraints prohibit couples:

●

●

●

●

from using basic IVF to initiate pregnancy,from deciding not to transfer all the embryosto a uterus,from cryopreserving and thawing embryosfor later transfer, orfrom donating embryos to willing recipients.

Fetal research statutes, many of which addressquestions of research with aborted fetuses, do notgenerally speak to these issues. For example, theydo not appear to prohibit clinical use of IVF. First,most apply only to aborted embryos or fetuses,

and not to preimplantation embryos. Second, theyban research or experimentation, not nonexperi-mental therapeutic applications of techniques thataim at bringing healthy offspring into being. (Seech. 9 for discussions of the status of IVF as ex-perimental or therapeutic, and of State and Fed-eral limits on embryo research.) Nor would thestatutes clearly ban cryopreservation of embryos,as enabling embryos to be transferred during alater cycle may fall within the statutory excep-tions for research done to benefit or avoid harmto embryos.

Finally, the validity of fetal research statutes re-mains to be determined; in the only challenge todate, a Louisiana ban on experimentation with fe-tuses obtained from induced abortions was struckdown for vagueness (50). In its decision, the Courtfocused on the fact that it is difficult to distinguishbetween experimentation on the fetus, and testson the fetus that are necessary for ensuringmaternal health. As a result, physicians would beunsure of whether their actions were banned bythe statute. Adoption of this reasoning by othercourts would make it unlikely that statutory banson fetal experimentation, unless quite narrowlydrawn, could survive constitutional challenge.

A concurring opinion in this case focused onthe unsubstantiated distinction between fetal tis-sue obtained by induced abortion and fetal orotherwise human tissue obtained from differentsources. (A concurring opinion is a separate opin-ion written by a judge of the court who agreeswith the outcome of the case, in this case, strik-ing down the Louisiana statute, but who prefersalternative reasoning.) Finding no rational reasonto ban experimentation on fetal tissue derivedfrom induced abortion while at the same time al-lowing experimentation on corpses and fetal tis-sue derived from miscarriages, the concurringopinion concluded that the statutory ban was part


Table 13-2.—State Statutes—Fetal Research

Restricts Prohibits sale of Mentions May restrict researchState fetal research fetus or embryo preimplantation embryos a with pre-embryosb

Alabama . . . . . . . . . . . . . . . .Alaska. . . . . . . . . . . . . . . . . .Arizona . . . . . . . . . . . . . . . . .Arkansas . . . . . . . . . . . . . . .California . . . . . . . . . . . . . . .Colorado . . . . . . . . . . . . . . .Connecticut . . . . . . . . . . . . .District of Columbia. . . . . .Delaware . . . . . . . . . . . . . . .Florida . . . . . . . . . . . . . . . . .Georgia . . . . . . . . . . . . . . . . .Hawaii . . . . . . . . . . . . . . . . .Idaho . . . . . . . . . . . . . . . . . . .Illinois . . . . . . . . . . . . . . . . .Indiana . . . . . . . . . . . . . . . . .Iowa . . . . . . . . . . . . . . . . . . .Kansas . . . . . . . . . . . . . . . . .Kentucky . . . . . . . . . . . . . . .Louisiana . . . . . . . . . . . . . . .Maine . . . . . . . . . . . . . . . . . .Maryland . . . . . . . . . . . . . . .Massachusetts . . . . . . . . . .Michigan . . . . . . . . . . . . . . .Minnesota . . . . . . . . . . . . . .Mississippi . . . . . . . . . . . . .Missouri . . . . . . . . . . . . . . . .Montana . . . . . . . . . . . . . . . .Nebraska . . . . . . . . . . . . . . .Nevada . . . . . . . . . . . . . . . . .New Hampshire . . . . . . . . .New Jersey . . .New Mexico . .New York . . . . .North CarolinaNorth Dakota. .Ohio . . . . . . . . .Oklahoma . . . . .Oregon . . . . . . .Pennsylvania. .Rhode Island..South CarolinaSouth Dakota .Tennessee . . . .Texas . . . . . . . .Utah . . . . . . . . .Vermont . . . . . .Virginia . . . . . . .Washington . . .West Virginia..Wisconsin . . . .Wyoming . . . . .

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. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. . . . . . . . . .

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B OX 13-A. —Summary of State Laws That Specifically Address In Vitro Fertilization

Kentucky.–Kentucky mentions IVF in its adop-tion statutes, only to say that nothing in a statuteprohibiting adoption in certain instances prohibitsIVF.

Illinois.—Illinois’ fetal research statute specifi-cally says that it is not intended “to prohibit the per-formance of in vitro fertilization,” when it says thatnontherapeutic experimentation on a “fetusproduced by the fertilization of a human ovum bya human sperm” is prohibited.

Louisiana.—Louisiana passed a law in 1986 con-cerning “in vitro fertilized” ova, thereby seeminglyexcluding embryos created in vivo, whether or notsubsequent lavage and transfer were contemplated.The law forbids the purposeful creation of an invitro embryo solely for the purpose of research orsale. The law also expressly prohibits the sale ofa human ovum.

The Louisiana law is novel in that it expresslygrants the status of “juridical person” to the ferti-lized ovum, until such time as it is implanted in auterus, when presumably its status is governed byState law applying to products of conception inutero. As a juridical person, the fertilized ovum maysue or be sued, and may not be considered prop-erty. Instead, the gamete donors are considered itsparents, and if they are unidentifiable, the medi-cal facility is considered guardian of the fertilizedovum. The gamete donors may allow another cou-ple to adopt the embryo. Inheritance rights do notattach until birth, and then attach to the birthingor adopting parents, rather than the genetic par-ents. No person, including the gamete donors, mayintentionally destroy an in vitro embryo that ap-pears capable of normal development. IVF facilitiesare particularly noted as having a direct responsi-bility for the safekeeping of the embryo. Further,while such facilities and their personnel are pro-tected from strict liability claims by the embryo,they are not so protected from strict liability claimsbrought by other interested parties.

The law restricts IVF practice to those facilitiescomplying with the personnel qualification andphysical plant guidelines of the American Fertility

SOURCE: Office of technology Assessment, 1988

Society or the American College of Obstetriciansand Gynecologists.

New Mexico.–New Mexico defines IVF and thenstates that ‘(clinical research” is to be construed“liberally to embrace research concerning all phys-iological processes in man and includes researchinvolving human in vitro fertilization, but shall notinclude human in vitro fertilization performed totreat infertility; provided that this procedure shallinclude provisions to insure that each living ferti-lized ovum, zygote or embryo is implanted in a hu-man female recipient, and no physician may stipu-late that a woman must abort in the event thepregnancy should produce a deformed or handi-capped child” [Sec. 324-9 A-1 (D)].

The restrictions on research thus do not applyto IVF conducted to treat infertility, even if theyare experimental or unproven in some sense. Thusthis law’s effect on IVF does not appear to be sig-nificant.

Pennsylvania.—Pennsylvania defines IVF as “thepurposeful fertilization of a human ovum outsidethe body of a living human female” (Sec. 3203). Itthen requires that all persons conducting or ex-perimenting in IVF “file quarterly reports with thedepartment which shall be available for public in-spection and copying. ” The reports must includethe names of the persons conducting or experi-menting in IVF, the locations, the sponsor of theresearch, number of eggs fertilized, number de-stroyed or discarded, and number transferred (“im-planted”) in a woman. The names of the personsor couple providing the gametes are not requiredto be reported. Failure to file a report is subject toa fine of $50 a day.

A telephone call to the State official in charge ofthese records in 1985 revealed that reports are filedby many programs, though no effort to monitorprograms to see if they are complying with the lawhas occurred. Nor is it clear what purpose collec-tion of these data now serves, since they do not ap-pear to have been used for any regulatory purposeor sought by researchers.

Ch. 13–Legal Considerations: Artificial Insemination, IVF, Embryo Transfer, and GIFT . 253

of an attempt to discourage the use of abortion(other aspects of the statute were found to havethis purpose), and for that reason was unconstitu-tional. If this latter reasoning were adopted byother courts, it would increase the possibility thatgeneral bans on experimentation with fetal tis-sue, regardless of source, could survive constitu-tional scrutiny because they would no longermake the unjustifiable distinction between fetaltissue obtained by abortion and that obtained bymiscarriage.

Discretion over discard of embryos does not gen-erally appear to be considered by fetal researchstatutes. Almost all address what can be done withthe product of abortion, but do not address re-strictions on abortion itself. Thus, they would notappear to affect the decision to discard an embryo.Even the four States that would arguably preventresearch on discarded embryos (see table 13-2)do not address the legality of discard itself.

Discretion over discard of embryos is specifi-cally addressed, however, by Louisiana’s IVF law,which states that even the gamete donors maynot discard a viable embryo. Instead, they maypreserve it for later use or donate it (without com-pensation) to another couple. Physicians and IVFfacilities are directed to take every precaution topreserve the viability of the IVF embryo.

Although some prosecutorial authorities haveindicated that they will not prosecute IVF pro-grams under their fetal research laws if all em-bryos are transferred to a uterus, it is not clearthey have a statutory basis for such a position.Further, transfer of grossly abnormal embryosresulting in miscarriage might be a violation ofa physician’s duty to the patient.

Juridical Status of theExtracorporeal Embryo

There are mixed indications of whether thepreimplantation embryo will be treated as theproperty of the gamete donors. Some commen-tators have written about viewing sperm and ovaas property, and have speculated about the ex-tension of this concept to embryos (42). Judicialdecisions have begun to wrestle with the ques-

tion as well. For example, in a challenge to theIllinois IVF law, a court accepted the notion thatan IVF patient is pregnant as of the moment heregg is fertilized, even though the fertilization isextracorporeal (71). The implication is that anydecision concerning disposal, particularly destruc-tion, must be made with the woman’s consent,as is done for any form of pregnancy termina-tion. In such a case, it is unclear whether this priv-ilege is based on notions of control of property.

On the other hand, a couple successfully suedfor $50,000 in damages when their preimplanta-tion embryo was deliberately destroyed after anIVF treatment was canceled by the clinic (24).Nevertheless, the trial-level case set no precedentoutside its own district; further, it awarded dam-ages for intentional infliction of emotional dis-tress, rather than for conversion or trespass tochattel, which are causes of action for interfer-ence with the property rights of another (59).

The Louisiana IVF law defines the extracor-poreal in vitro fertilized ovum as a “juridical per-son, ” specifically stating that the gamete donorshave parental rather than property rights withrespect to the embryo. It further states that theextracorporeal embryo is able to sue and be sued,implying that actions adversely affecting its via-bility or its health upon birth are subject to legalconsequences. In many States, persons have theright to sue for injuries sustained prenatally(10,44,63), but the Louisiana law goes further,granting to the embryo the right to sue for inju-ries, rather than having these rights accrue uponbirth. Granting rights of personhood to an em-bryo, extracorporeal or in utero, could conflictwith the U.S. Supreme Court ruling in Roe v.Wade, which stated explicitly that the unborn arenot “persons” within the meaning of the 14thAmendment’s due process and equal protectionclauses (62). However, the Louisiana law has notyet been tested in court.

Later Implantation for Same Couple

The physician or institution providing the invitro service will be responsible for adequate stor-age of any frozen embryos being kept for lateruse by the same couple. Failure to exercise rea -


sonable care could leave the service provider opento liabilities stemming from medical malpractice,negligence, intentional or negligent infliction ofmental distress, interference with property, orbreach of contract. Such a case could arise, forexample, where a malfunctioning incubator dam-ages stored embryos.

Not every embryo loss would leave the providerliable; the technology of embryo freezing andstorage is still too undeveloped to offer any guar-antee that the embryos will all survive. Yet, fail-ure to operate a storage facility that meets theaverage standards of practice of the industry cer-tainly would be strong evidence of negligence (53).Furthermore, any deliberate destruction of theembryo, such as took place in the case mentionedin the preceding section, would almost certainlyleave the provider liable. The Louisiana IVF lawspecifically prohibits the physician or institutionfrom destroying the embryo. It absolves the’ phy -sician and institution from strict liability forscreening, fertilization, preservation, and trans-fer of the ovum, but only with respect to actionsbrought on behalf of the fertilized ovum. Thus,strict liability might be applicable in a suit by thegamete donors. Further, it absolves the physicianand institution from any liability to the embryoif actions were taken in “good faith,” but fails toclarify whether a well-intentioned but negligentaction would be covered.

“Strict liability” is a legal doctrine generally ap-plied to either ultrahazardous or unnatural activ-ities with a great propensity for harm regardlessof how carefully undertaken. Under this doctrine,in order to collect damages a plaintiff need onlyshow that the defendant’s actions harmed theplaintiff. It is unnecessary to show that the defen-dant was negIigent. In essence, the doctrine placesfinancial responsibility for harm on those whochoose to undertake these activities, regardlessof their efforts to be careful or their good inten-tions. The activities that might qualify for strictliability have been the subject of much discussion,a number of cases, and several efforts by theAmerican Law Institute’s codifications of case law,known as “Restatements” of the law. In light ofthe high rate of early embryo loss in both natu-ral and in vitro fertilization, it is difficult to pre-

dict whether IVF would ever become subject inany particular State to strict liability principles.

Calculating the damages from the loss of an em-bryo would be difficult as this is an unsettled areaof law. One calculation could focus on the costof obtaining a replacement embryo. Anothercould be the calculation of the net value of thepotential child that was lost (35).

Trusts and Estates

Problems regarding trusts and estates are raisedby the prospect of frozen embryos left unim-planted after the death of one or more of thegenetic parents, as occurred in the Australian caseof the Rios embryos (see box 11-A in ch. 11). Con-troversy developed over whether the embryosshould be discarded, given to another couple togestate and raise as theirs, or given to anotherto gestate and raise as the orphaned children ofthe Rioses. Although the embryos were geneti-cally related only to Mrs. Rios, the intended rear-ing father (her husband) had consented to the useof donor sperm, a fact that would have made himthe legal father of the embryos upon birth. Thislast scenario could conceivably have made the off-spring heir to the considerable Rios fortune, andexplains in part the international attention thatwas focused on these frozen embryos (70).

Further, in other areas of trusts and estates Iaw,the validity of certain legacies is determined bywhether the beneficiaries will be completely iden-tifiable within a certain period of time, This periodof time depends partly on identifying those “livesin being” at the time the legacy is created (16).Although clearly frozen extracorporeal sperm arenot lives in being, the same cannot be stated ascategorically for a frozen embryo, although con-stitutional decisions holding that the unborn arenot “persons” under the 14th Amendment mayprevent States from defining frozen embryos as“lives in being” (62).

The Louisiana IVF law grants inheritance rightsto the embryo at the time of birth. Further, theresulting child would inherit from the womanwho gives birth (and her husband, if any), ratherthan from the gamete donors. The provision is

Ch. 13—Legal Considerations: Artificial Insemination, IVF, Embryo Transfer, and GIFT ● 255

unclear, however, with respect to a number of father’s will in order to account for this new child.problems. For example, if the woman giving birth With no time limit specified for inheritance pur-were unmarried, it is unclear whether the child poses, such events pose real problems for the or-could inherit from the genetic father if his sperm derly disposition of estates. The ambiguities in thewere used as that of an anonymous sperm donor Louisiana effort to account for inheritance rightsrather than an intended rearing parent. Further, of extracorporeal embryos simply point out someif the genetic father is deceased but his wife, the of the many complexities of trusts and estates lawgenetic mother, gives birth many years later by in this area, a topic beyond the scope of thisbringing to term a previously frozen embryo, it report.would appear necessary to reopen probate of the

GAMETE INTRAFALLOPIAN TRANSFER

Gametefer of ova

intrafallopian transfer involves trans-and sperm by catheter to the fallopian

tubes, where fertilization may take place (see chs.7 and 15). As both donor sperm and donor eggscan be used, GIFT can raise all the same questionsof relative rights and responsibilities among ga-mete donors and gestators as are raised by IVF.

In one sense, GIFT simplifies the legal issues raisedby noncoital reproductive technologies, becauseit eliminates the presence of the extracorporealembryo. This avoids the difficulties posed whenembryos are left frozen after the death of thegenetic parents, and also avoids the possibility ofcommercial cryobanking of embryos.

EMBRYO TRANSFER

This section considerschild will be raised by a

the situation in which agestational mother and

her husband or partner, using an embryo thatwas donated. Embryos may be donated in one oftwo ways. First, embryos may be donated by cou-ples who have embryos left over from an IVF pro-cedure. In this situation, the gestational motherwill rear a chiId to whom neither she nor her hus-band are genetically related. The genetic parentsof the embryo are referred to as embryo donors.Although this can occur with fresh embryos,problems of synchronizing the recipient’s cyclemake it more likely to occur as cryopreservationof embryos becomes more common.

Second, a woman may deliberately undertaketo donate an ovum to another. For example, shemay undergo laparoscopy or sonography-guidedegg retrieval so that the recovered eggs can befertilized in vitro before being implanted inanother woman’s womb. In this situation, thegestational mother’s husband usually donates thesperm to be used for the fertilization, and theterm ovum donor is used to refer to the womanundergoing egg retrieval.

A variation on this method for donation is forthe ovum donor to become pregnant by artificialinsemination with the intended gestational mother’shusband’s sperm, in order to have the fertilizedegg washed from her uterus by lavage and thendonated to the gestational mother. Since thelavage removes an embryo from the uterus be-fore it has implanted, it probably cannot be con-sidered an abortion; use of an intrauterine devicemay also induce the removal of a fertilized ovumbefore implantation, but is not viewed under thelaw as equivalent to an induced abortion. Never-theless, the precise classification of artificial in-semination followed by uterine lavage remainssomewhat ambiguous. Embryo donation by artifi-cial insemination and lavage, or by egg retrievaland IVF with the intended rearing father’s sperm,is quite rare and may remain uncommon (see ch.15).

The situation in which an embryo is carried tofull term by a gestational mother and thenreturned to the gamete donors for rearing—ges -tational surrogate motherhood—is considered inchapter 14.

256 Infertility: Medical and Social Choices

Existing Legislative Controls

With the exception of Louisiana and Kentucky,no State has statutes specifically addressing em-bryo donations of any type. The tendency or prac-tice of some persons to speak of embryo dona-tions as “embryo adoptions” can be misleadinglegally, since State adoption laws have always in-volved transfer of rearing rights and duties in alive-born infant rather than in an unimplantedembryo.

Fetal research statutes generally cannot be readto prevent the donation of embryos created invitro or by artificial insemination followed bylavage. In five States)

3 however, prohibitions ondonating fetuses for research or experimentationmight be interpreted to include embryo donationfor gestation, if the definition of fetus were ex-tended to include embryos and the transfer proc-ess were viewed as experimental. In Nebraska andWyoming, this same conclusion might be drawnif, in addition, the embryo resulted from an abor-tion, arguably true in the case of artificial insemi-nation followed by lavage for the purpose offer-tilized ovum donation (4).

By contrast, the Louisiana IVF law (which ap-plies only to ova fertilized in vitro rather than byartificial insemination) specifically preserves thepossibility of donating the embryo, but does notpermit any compensation for the donation. It al-lows gamete donors to renounce their parentalrights, at which time the embryo can be donatedto another. The drafting of the statute makes itunclear, however, whether only married couplesmay accept the donated embryo. It is also unclearfrom the drafting whether the IVF facility canlimit donations to persons meeting criteria itspecifies.

Kentucky Revised Statutes Section 199.590,which prohibits payment in connection withadoption, was revised in 1984 to read:

Nothing in this section shall be construed to pro-hibit in vitro fertilization. For the purposes of thissection, in vitro fertilization means the processwhereby an egg is removed from a woman, thenfertilized in a receptacle by the sperm of the hus-

3Maine, Massachusetts, Michigan, North Dakota, Rhode Island.

band of the woman in whose womb the fertilizedegg will thereafter be implanted.

Subsequent court dictum in the 1986 Kentuckycase Surrogate Parenting Association interpretedthe section to mean that embryo donation is per-mitted when the gestational mother and geneticfather are married to one another and intend toraise the child themselves (74). (“Dictum” is com-mentary that is not strictly necessary to the de-cision on the case before the court; it is used byjudges to explain their reasoning and to drawanalogies to other fact situations. Although dic-tum has no precedential value, it can be persua-sive to other courts, and can provide a clue asto future judicial decisions in related areas of law.)However, no case has arisen in Kentucky to testthis interpretation or to determine legal mater-nity in the event of a dispute between a geneticand a gestational mother.

The Kentucky statute addresses embryo trans-fer involving an ovum donor who undergoes eggretrieval so that the ova may be fertilized withthe gestational mother’s husband’s sperm, but itdoes not address the question of the more com-mon form of embryo donation, which involvesthe transfer of “surplus” embryos from one cou-ple to another. By its terms, the Kentucky stat-ute cannot apply to this situation, as the gesta-tional mother’s husband would not be the geneticfather of the resulting child. However, there isnothing in existing Kentucky law that prohibitssuch transfers either.

No other State statutes address embryo trans-fer. Nor can the State artificial insemination bydonor laws be easily interpreted to extend to maleand female gametes alike, since they use the term“sperm” or “semen. ” It is likely that courts wouldgive legal effect to the agreement between theparties to an embryo donation if it paralleledsperm donation—i.e., if an ovum donor has norearing rights and duties and the consenting em-bryo recipient (who will also gestate) and her part-ner (who will be the genetic father) assume them.Yet, embryo donation entails greater risk to theovum donor than does sperm donation.

The risks of ovum donation depend on a num-ber of factors, including the method by which theova are recovered. Laparoscopy involves the risks

Ch. 13—Legal Considerations: Artificial Insemination, IVF, Embryo Transfer, and GIFT . 257

of abdominal surgery, such as infection and anes-thesia. Sonography-guided vaginal retrieval alsoposes a risk of infection, and both egg recoverytechniques may be used in conjunction with drugsto stimulate ovulation, thus posing the risk of sideeffects. Artificial insemination followed by uter-ine lavage and embryo retrieval risks unintendedor ectopic pregnancy, as well as the transmissionof infectious disease by the semen used for theinsemination.

These risks may strongly influence the devel-opment of paid ovum donation, as professionalsocieties such as the American Association of Tis-sue Banks recommend that their members not ac-cept tissues if it entails “undue risk” to the donor.The difference in risk associated with these formsof embryo donation as opposed to sperm dona-tion might be used by professional societies andlawmakers to justify regulation or prohibition ofpaid embryo donation, at least when it is under-taken solely to earn money and not in conjunc-tion with a therapeutic or diagnostic procedureneeded by the ovum donor herself.

Some restrictions on commercial embryo do-nations do exist. Payment for a human embryois specifically banned in Louisiana and Florida,and some of the State fetal research statutes pro-hibit the sale or transfer of embryos for experi-mental purposes. Eleven States that prohibit sell-ing fetuses for experimentation use languagepotentially broad enough to affect the sale of em-bryos conceived in vivo (10, I1,12).

Professional Responsibility

Professionals who facilitate embryo transferhave responsibilities with regard to ensuring thatthere is informed consent by all parties to the pro-cedure, that the sperm and ova are properlyscreened, and that the resulting embryo is pre-served as well as current technology permits.

Ensuring informed consent is difficult when therisks of a procedure are still poorly understood.Under these circumstances, physicians are gen-erally required to err on the side of caution andto present even those risks that seem quite re-mote (34). Relatively unexplored procedures, suchas artificial insemination followed by lavage, posejust this dilemma.

There are no State laws on recordkeeping andconfidentiality with respect to embryo donation.As these donations require a medical procedure,however, hospital or at least office records arelikely to exist for each donor. Such records areordinarily held in confidence, but are subject todisclosure upon court order or at the request ofthe patient herself (39).

No legal constraints on techniques for ovumscreening exist, although professional guidelineshave been issued by the American Fertility Soci-ety, in addition to those issued with regard tosperm donation. Further, there are no statutoryrequirements that physicians screen fertilized ovafor morphological indications that they are notviable, but it is nevertheless a common practiceat IVF clinics. Even so, some clinics transfer em-bryos that may have little chance of implantingand coming to term, both because the dearth ofembryo research has made it difficult to predictwith certainty which embryos will implant suc-cessfully and because of a desire to avoid the ethi-cal issues raised by the deliberate discard of fer-tilized eggs (84).

Responsibility for storage of a cryopreservedembryo will always fall on the institution provid-ing the service. But the party to whom the insti-tution is liable in the event of negligence maychange, depending on who is considered the“owner” of the frozen embryo and who intendsto raise the resulting child. If an embryo has beendonated to another couple, and this donation isevidenced by some sort of written or oral agree-ment, the intended recipients might be viewedas the “owners, ” at least with respect to controlover decisions concerning disposition of the em-bryo. This scenario has not yet been testedcourt of law.

Embryo Donor's Rightsand Duties to Child

Using the analogy of the sperm donor’sand duties to his genetic offspring, a couple

in any

rightsdonat-

ing an embryo to another would presumably haveno rights or duties to the child. As only the donorsare familiar with their own genetic backgrounds,however, they might have a duty to warn the re-cipient of potential genetic problems in the off-


spring, If the resulting child is in fact born witha genetic problem that could have been identi-fied if the donors had warned the recipient of itspossibility, there might be two causes of action.First, the recipient might sue to recover the ex-tra costs of raising a child with these problems.Second, the child might sue the donors. If theproblem would have been correctable, then thesuit would be for the pain and suffering of livingwith the disease. If the problem were unavoida-ble except by abortion, the child might sue for‘(wrongful life)” alleging that nonexistence wouldhave been preferable to diseased existence.

Such wrongful life suits have met with limitedsuccess in U.S. courts, but as the number of iden-tifiable genetic disorders increases, they might be-come more common (19,21)56)63). Usually theyare directed at the physician or genetic counselorwho failed to properly advise the parents of thecondition. In this situation, both the parents andthe gamete donors have a role in identifying thedisorder, and thus may be liable to the potentialchild. A suit against the gamete donors is some-what analogous to a suit against the genetic coun-selor, as in both cases a duty exists to disclose in-formation that is uniquely held by that person.

When these suits are directed at the child’s rear-ing parents, it appears at first to be a futile at-tempt to move funds from the parents’ pocketsto the child’s. In fact, however, the purpose maysimply be to obtain funds from the parents’ in-surer. To date, courts and legislatures have notshown a willingness to countenance such suitsagainst a child’s parents (30)67)68). Should this re-action change, however, insurance coverage forsuch liabilities may be an important factor in thegrowth of these particular lawsuits. Another keyfactor would be the development of recordkeep-ing practices that allow identification of the em-bryo donors; if they are kept anonymous, thenthe child and the child’s rearing parents wouldbe unable to bring suit. Such anonymity has beena factor in restricting analogous suits againstsperm donors.

Requirements for Consent ofOvum Donor% Husband

A husband may have an interest in his wife’sdecision to be artificially inseminated for subse-

quent lavage and recovery, There is, however, nocommon law or statutory duty for a physician toobtain the consent of an ovum donor’s husband.Using the analogy of sperm donation, if the ovumdonor has no legal rights or responsibilities to thechild, it is unlikely that a consent requirement willbe developed. There is a key distinction, however,between being an ovum donor and being a spermdonor that might affect consent requirements: theformer may inadvertently become pregnant. Ifshe does, and if she chooses to sustain the preg-nancy, then her husband could become legallyresponsible for the child.

Embryo Recipient's Rights andDuties to Child

As the embryo recipient is the intended rear-ing parent, her responsibilities will probably beidentical to those of any mother. Her rights, how-ever, are less clear. As a “gestational mother,” sheis not clearly recognized in law as the sole womanwith claim to be recognized as the “legal” mother.Analogies to date have been limited to questionssurrounding fatherhood, in which genetic rela-tionship is generally determinative of parentage(37).

One major exception, however, is the presump-tion of paternity, which is designed both to pro-tect the needs of the child to have two parentsand to preserve the institution of marriage. Sim-ilar policies might come to be used to justify aState policy favoring a gestational mother or anintended rearing parent’s primacy in any conflictwith the genetic mother over custody to the child.In the only two court cases to date, however, pre-birth uncontested petitions to have the geneticmothers (rather than gestational mothers) recog-nized as the legal mothers of the children weregranted, subject to postbirth confirmation (72)73).The cases, however, were from lower courts, andso have limited precedential value even within theStates in which the courts were sitting. A rulingon a similar case in Virginia is expected in early1988 (27).

It should be noted, too, that embryo donationwill be made by a woman who has undergonean IVF procedure and who has had several em-bryos left over after the procedure. In otherwords, the embryo results from an invasive sur-

Ch. 13–Legal Considerations: Artificial Insemination, IVF, Embryo Transfer, and GIFT . 259

gical laparoscopy done on a woman who herselfwas having trouble conceiving. If such a womansubsequently finds that she is unable to have achild, perhaps because she is unable to carry toterm, there may be an emotional demand for cus-tody of any child that resulted from one of theembryos, regardless of the gestational mother’sown attachment after pregnancy. There is notested law at all on this subject, and as yet noestablished principles to predict the outcome inthe event of such a controversy.

when a woman seeks an embryo transfer froman ovum donor, despite the analogy to artificialinsemination. Physicians can be expected to indi-vidually require such consent if they know thatthe woman is married, just as many have in thecontext of artificial insemination. Absent legal con-straints, however, such consent is not required.Nevertheless, the presumption of paternity willprobably render the husband the legal father ofthe child, even if his sperm were not used to in-seminate the ovum donor nor his consent obtained.

With regard to the embryo recipient’s husband,no statutory requirement for his consent exists

RESTRICTING OR REGULATING THE SALEOF GAMETES OR EMBRYOS

Most States do not prohibit the sale of blood,plasma, semen, or other replenishing tissues iftaken in nonvital amounts (55,79), although theprohibitions on organ sales in three States are con-ceivably broad enough to cover semen sales aswell (12). Florida, however, outlaws the sale ofhuman embryos: “No person shall knowingly ad-vertise or offer to purchase or sell, or purchase,sell or otherwise transfer, any human embryo forvaluable consideration” [Fla. Stat. Ann. Sec.873.05(1)]. Similarly, Louisiana’s IVF law prohibitspaid transfers of fertilized ova.

State laws usually characterize these paid trans-fers as provision of services rather than sale ofcommodities, either in the State’s version of theUniform Anatomical Gift Act or in their versionof the Uniform Commercial Code (UCC), whichgoverns various commercial transactions, includ-ing contracts for the sale of goods. The primaryreason for this characterization is to avoid liabil-ity for defective products under either generalproduct liability principles or the UCC’S impliedwarranty provisions (18,22,36). In addition, serv-ices are not subject to the UCC’S specific perform-ance provisions.

Product liability is the name given to the areaof law involving the liability of suppliers of goodsor products for the use of others, and their re-sponsibility for various kinds of losses resultingfrom defects in those products. Four possible the-

ories of recovery are available under product lia-bility law:

●

●

●

●

strict liability in contract for breach of an ex-press or implied warranty,strict liability in tort largely for physical harmto persons and tangible things,negligence liability in contract for breach ofan express or implied warranty that the prod-uct was designed and constructed in a work-manlike manner, andnegligence liability in tort largely for physi-cal harm to persons and tangible things (59).

Generally, negligence liability may exist with re-spect to both products and services, but strict lia-bility is applicable only to products, Thus, charac-terization of blood and semen sales as servicesenables blood and semen banks to avoid liabilityif a specimen is contaminated or infected, pro-vided that the bank was not negligent (46).

If sales of gametes and embryos were to betreated as those of goods as opposed to services,then UCC warranties would apply. The UCC pro-vides that commodity contracts (but not serviceones) are subject to:

● the implied warranty of merchantability,which requires goods to be of “fair averagequality” within the description provided bythe seller and fit for the ordinary purposesfor which such goods are used (UCC Sec. 2-314), and

● the implied warranty of fitness, which re-quires goods to be suitable for the buyer’sparticular purpose to the extent this purposeis known by the seller (UCC Sec. 2-315).

The merchantability warranty only applies tosales by “merchants,” defined by the UCC as thosewho regularly supply the product (e.g., hospitals,tissue banks), but not by occasional sellers [UCCSec. 2-104(1)]. The fitness warranty applies equallyto regular dealers and occasional sellers (UCC Sec.2-315).

If these transactions were treated as sales ofcommodities, these implied warranties could re-sult in substantial liability for injuries resultingfrom transfusion or insemination with a specimencapable of transmitting hepatitis, AIDS, or anothercontagious disease. Insemination with sperm con-taining a genetic defect could also result in sub-stantial liability. Since the suit would be based onstrict liability for breach of warranty rather thannegligence principles, careful examination ofspecimens for contamination or a genetic flawwould not entitle the providing entity to avoid lia-bility if an injury occurred.

If exchanges involving human gametes and em-bryos are treated like those involving blood–i.e.,if such exchanges are considered to be trans-actions for services rather than commodities—then certain types of liability may similarly beavoided by tissue and cell banks, research insti-tutions, hospitals, and companies. Although lia-bility would continue to exist for negligence (e.g.,failing to use an available and appropriate test toscreen suppliers for viral infections), there wouldbe no liability for imperfect specimens in the ab-sence of negligence. Avoiding the concept of animperfect specimen with respect to embryosmight also help avoid some of the ethical ques-tions raised by treating embryos as traditionalarticles of commerce.

The Federal Government has the authority toenter this area to regulate gamete and embryosales by virtue of the interstate commerce clause(see ch. 9). The ultimate regulation of interstatecommerce might be to ban the sale of an articlealtogether. Of course, the Food and Drug Admin-istration does this implicitly for all drugs and med-

ical devices that have not been proven safe andeffective. But Congress has also indicated its will-ingness to ban the purchase and sale of humanbody parts, and could certainly ban the interstatesale of human embryos, as well as sperm and ova.In 1984, for example, Congress passed the Na-tional Organ Transplant Act. Although most ofthe act is aimed at promoting organ transplanta-tion in the United States, Title III is directed ex-clusively toward prohibiting organ purchases:

It shall be unlawful for any person to knowinglyacquire, receive, or otherwise transfer any hu-man organ for valuable consideration for use inhuman transplantation if the transfer affects in-terstate commerce. For the purposes of this act,“human organ” is defined to mean “the humankidney, liver, heart, lung, pancreas, bone marrow,cornea, eye, bone, and skin. . . .“ Violation carriesa five year maximum prison sentence, and a$50,000 fine [Public Law 98-507 (1984)1.

Thus, the statute bans the profitable sale oforgans, although not the recompense of expensesincurred by the donor. The statute’s organ saleprohibition was based primarily on congressionalconcern that permitting the sale of human organsmight undermine the Nation’s system of volun-tary organ donation (77). It was also driven byconcern that the poor would sell their organs tothe rich, to the detriment both of poor peoplewho might feel economically coerced to becomeorgan suppliers and those who need but cannotafford transplantable organs. It may also reflectcongressional distaste for sales of human bodyparts generally.

These considerations may or may not apply tothe sale of gametes and embryos (29). Semen sales,in particular, involve no physical risk to the donorand have long been tolerated in the United States.Ova sales involve risk to the donor, as she maywell be prescribed drugs to induce superovula-tion, undergo laparoscopy for retrieval of theeggs, or be impregnated by artificial inseminationand risk ectopic pregnancy from the lavage tech-nique used to recover the fertilized ovum. Em-bryo sales may involve the risks of ovum dona-tion, and also raise ethical considerations notpresent in the sale of gametes (see ch. 11).


MODELS OF

The approaches taken by State legislatures tothe oversight or regulation of noncoital reproduc-tion may be broadly grouped into five categories:static, private ordering, inducement, regulatory,and punitive (25,82). These models are of inter-est both because they reflect the variation in pro-posed State legislation and because they serve asan informative guide to Congress, should it chooseto consider legislation in this field. Further, con-stitutional challenges to these State laws could il-luminate the boundaries of the right to procreate.

The static approach, one of State legislative in-action, leaves the resolution of familial relation-ships to case-by-case consideration by the courts.For example, in the District of Columbia and the20 States without legislation on the topic of arti-ficial insemination, challenges to the legitimacyor legal status of the resulting child could bebrought, and judicial determinations would bemade based on the effect of any general Statelegislative presumptions of paternity, the best in-terests of the child, the understanding of the par-ties to the insemination, the existence (if any) ofan underlying contractual agreement, and otherpertinent facts. This nonlegislative approach canbe indicative of a lack of consensus among Statelegislators, or a temporary absence of legislativeleadership while courts are given an opportunityto consider several test cases. Alternatively, itcould be an expression of hostility to an activityaltogether. By failing to provide legislative guidesto resolving possible disputes, the legislature caneffectively decrease the frequency of the activ-ity within the State by making it a more legallyrisky venture for the participants.

Private ordering approaches allow the State tovalidate private arrangements by recognizingunderlying agreements or contracts to allocatefamilial roles to those who participate in artifi-cial insemination by donor or the transfer of em-bryos for IVF, Artificial insemination statutes thatidentify the recipient’s husband as the legal fatherof her child only if he consented to the insemi-nation follow this model. others allow partici-pants to specify that a sperm donor may have acontinuing parental role for the child. Legitimiz-

STATE POLICY

ing these choices by State statute and enforcingthem by judicial action places the State in the roleof facilitating individual choices of all sorts.

By contrast, inducement approaches only vali-date the parties’ underlying intentions or agree-ments if their actions meet certain legislative con-ditions. For example, many of the State artificialinsemination statutes contemplate only those in-seminations done by a physician. The physicianrequirement can be premised on a number of pol-icies, such as ensuring the physical and genetichealth of both sperm donor and recipient, main-taining artificial insemination as a form of medi-cal practice despite the ability of laypersons toperform the procedure, encouraging the use ofanonymous donation only, or facilitating the roleof physician as a gatekeeper who screens out so-cially unacceptable recipients and donors. Sucha law can encourage conformity to State-sanc-tioned procedures by denying nonconformingartificial insemination participants the advantageof certain legitimation of the resulting child un-der State paternity law, or by denying a recipi-ent the advantage of knowing that the spermdonor is unable to reenter her life with a requestto be acknowledged as the father of her child.The case of Jhordan C. (43) in California exem-plifies the results of the inducement approach,as the lack of physician-supervised inseminationallowed the court to fashion a unique distribu-tion of parental rights and responsibilities thatprecisely followed neither the parties’ original in-tentions nor those set forth under the Californiaartificial insemination by donor statute.

A prominent example of a regulatory approachis the Louisiana IVF law, which specifies that IVFbe done in accordance with the standards of prac-tice suggested by prominent medical professionalsocieties. This translates into legalization of clinicsstaffed and equipped to the levels identified asdesirable by groups such as the American Fertil-ity Society or American College of obstetriciansand Gynecologists, and implicitly makes illegalthose clinics that fail to meet these guidelines. Fur-ther, the Louisiana law attempts to specify a va-riety of rights held by an embryo in vitro and


responsibilities or limits on discretion for the phy - a technique entirely. The Louisiana and Floridasicians and gamete donors involved. The permis- bans on the sale of embryos exemplify this ap-sible limits of such State regulation may be sub- preach. These bans have not yet been challenged,ject to constitutional challenge, as would any State and so an explicit determination of their constitu-effort to take a punitive approach by outlawing tionality has not yet been made.

SUMMARY AND CONCLUSIONS

The use of noncoital reproductive technologiesraises questions concerning the relative rights andresponsibilities of gamete donors and rearing par-ents. In many cases, these questions are so newthat there is little or no guidance as to how thelaw will be applied. Legal literature and analogiesdrawn from other areas of law are available inthe meantime, to guide participants and courtsin their analyses of the rights and duties createdby these techniques.

With several configurations of parents available,it is probably not practical to draw an inflexiblerule generically stating that all gamete donors arethe legal parents of their progeny, or that allintended rearing parents have sole rights and re-sponsibilities to their children. Case-by-case con-sideration of the parties’ intentions, however,would probably yield a collection of rules. To date,the courts have not been presented with the fullrange of these situations, and thus have beenrestrained by the Constitution from making pro-

CHAPTER 13

1. American Association of Tissue Banks, Standardsfor Tissue Banking (Rockville, MD: 1984).

2. American College of Obstetricians and Gynecolo-gists, Newsletter (Practice Perspectives) (Washing-ton, DC: May 1987).

3. American Fertility Society, Report of the Ad HocComm”ttee on ArUfi”cia] Insemination (Birmingham,AL: 1980).

4. American Fertility Society, Ethics Committee, “Ethi-cal Considerations of the New Reproductive Tech-nologies,” Fertility and Sterility 46:1 S-94S, 1986.

5. American Fertility Society, “New Guidelines for theUse of Semen Donor Insemination,” Fertility andSterility 46:95 S-104S, 1986.

6. American Society of Law and Medicine, NationalSymposium on Genetics and the Law 11 (Boston,MA: 1979).

nouncements on all possible parental configu-rations.

Legislation, which is prospective rather thanretrospective in nature, could be drafted to clarifythese relationships and to safeguard the interestsof the children born as a result. Legislation, too,could fill in the gaps concerning the status of chil-dren born to single women using artificial insemi-nation, the control over the disposition of ex -tracorporeal embryos, and the maintenance ofrecords documenting the genetic parentage ofchildren born by these techniques.

Absent legislative directives, courts will con-tinue to decide cases that come before them, andto develop rules that help make the legal impli-cations of these parental relationships more pre-dictable. But as the courts in the District of Co-lumbia and each of the 50 States are free to cometo their own conclusions concerning these rules,there may long be significant State-to-State vari-ations in the law.

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