robinson & miller - emergent legal definitions of parentage in assisted reproductive technology

Emergent Legal Definitionsof Parentage

in Assisted Reproductive Technology

Cherylon Robinson, PhD, MSWMichael V. Miller, PhD

ABSTRACT. State statutes and court cases involving Assisted Repro-ductive Technology (ART) are examined to determine legal definitionsof father and mother. While traditional definitions are not disturbedoverall by statutes and cases involving use of artificial insemination bydonor among married couples, complications and disputes between par-ties involved in surrogacy arrangements and the use of artificial insemi-nation by donor among single women and lesbian couples have resultedin greater reliance on the intentions of the parenting agents to legally de-fine parent/child relationships. Alternative family forms are obtaininggreater legitimacy, although a preference for married, heterosexual cou-ples remains. Potential roles that clinical practitioners might play withinthe context of ART are explored. [Article copies available for a fee fromThe Haworth Document Delivery Service: 1-800-HAWORTH. E-mail address:<[email protected]> Website: <http://www.HaworthPress.com>© 2004 by The Haworth Press, Inc. All rights reserved.]

KEYWORDS. Assisted Reproductive Technology, ART, surrogacy,artificial insemination, alternative families

Cherylon Robinson, and Michael V. Miller are both affiliated with the Department ofSociology, The University of Texas at San Antonio, San Antonio, Texas.

The authors would like to thank Jency James, MLS, and Tina Travieso for their as-sistance in the Westlaw search.

Journal of Family Social Work, Vol. 8(2) 2004http://www.haworthpress.com/web/JFSW

© 2004 by The Haworth Press, Inc. All rights reserved.Digital Object Identifier: 10.1300/J039v08n02_02 21

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Assumptions that sex and reproduction are necessarily linked andnormatively confined to marriage are challenged by the use of AssistedReproductive Technology (ART), as are conventional definitions of fa-ther, mother, and family. ART provides an option for individuals andcouples unable or unwilling to procreate due to infertility, illness, inher-itable traits, sexual orientation, or lack of partner. But in doing so, it in-volves novel and complex forms of participation in the reproductiveprocess. Reproduction through ART does not require sexual inter-course, and indeed, frequently depends on the involvement of individu-als not bound by erotic and/or marital ties.

The potential for confusion about who will have rights and responsi-bilities for children conceived through ART is significant as they mayhave more than two parents. Assignment of parentage becomes particu-larly problematical when parenting agents disagree with one anotherabout the roles they should assume in children’s lives. Cultural normshave yet to evolve which would provide clear guidelines against whichto settle such disputes. Additionally, involvement with ART entails asignificant emotional component that often includes grief, anger, orguilt. This lack of clarity, within the context of strong emotional re-sponse, suggests that clinical practitioners should play an integral rolein these arrangements, providing preparatory counseling to identify is-sues to be considered by clients in the decision-making process, sup-portive counseling through the process of ART, and mediating conflictsthat might arise. This article should facilitate their participation by high-lighting the axes around which disputes commonly occur and by identi-fying legal trends in designation of parentage.

The state defines family relationships through marriage, parent andchild, adoption, and divorce laws. Traditionally, many of these lawswere based on British statute and case law–both requiring heterosexual-ity and monogamy. Maternity was never at question: a woman whogave birth to a child was legally defined as the natural mother. Paternitywas a function of the man’s relationship to the mother, with her husbandpresumed to be the natural father. Children born to single women wereconsidered illegitimate, having no father, and thus having no family.

The law in responding to ART may legitimate emergent usage, pro-hibit usage altogether, or restrict usage to only those procedures or peo-ple consistent with traditional definitions of parent. Thus, it may servean important “channeling function” by shaping subsequent social be-havior relative to this technology (Young, 1998). Family law predomi-nantly consists of state statutes and court cases. As reproductivetechnologies were developed and diffused, some state legislatures re-

22 JOURNAL OF FAMILY SOCIAL WORK

sponded through statutes that legitimated or prohibited usage. Statutesstipulated the conditions required for legitimation, and the rights and re-sponsibilities of individuals involved in the process. State judicial sys-tems follow a pattern of increasing influence from lower courts throughappellate courts up to the state supreme court. Such courts interpret statelaws through adjudication of cases involving ART. While lower courtsmay provide direction for subsequent cases, their decisions do not setprecedent. For this reason, only cases adjudicated at the appellate levelor higher are examined in this article. These cases most often involvechallenges to existing laws, challenges to the application of existinglaws, or requests for clarification of relations in the absence of laws spe-cifically dealing with ART. This combination of state statutes and courtcases comprise the body of legal authority defining relationships forthose employing these technologies.

In this article, we specifically assess the following questions: Towhat extent, and in what ways, have the various forms of ART beengranted legitimacy? As parenting roles have become segmented withemployment of this technology, which roles have been afforded greaterlegitimacy? Have alternative families created through ART receivedless than equal protection under the law; i.e., have certain types of peo-ple been legally discouraged from using ART? Finally, given the cur-rent legal response to ART, what roles are suggested for clinicalpractitioners in ART arrangements?

ART AND THE DIVISION OF REPRODUCTIVE LABOR

The most common form of ART employed in practice is artificial in-semination (AI). In simplest application, it entails the mechanical insertionof semen into the vagina or uterus of the prospective mother. Although em-ployed when either the man’s or the woman’s capacity to reproduce isproblematical, AI is primarily used for male infertility and single and les-bian women, and typically involves the impregnation of the woman by us-ing donor semen (commonly referred to as “artificial insemination bydonor” or AID).1

AI is also integral to traditional surrogacy arrangements, wherein awoman agrees to be artificially inseminated with the semen of a man towhom she is not married. She gestates the fetus, but then returns thebaby at birth to the biological father and his wife.2

A second medical procedure, in vitro fertilization (IVF), was origi-nally developed for female infertility caused by blocked or missing fal-

Cherylon Robinson and Michael V. Miller 23

lopian tubes. While typically used in nonsurrogacy situations,3 IVFmakes an additional surrogacy form possible. In gestational surrogacy,4the intended mother and the genetic mother are one in the same, but anotherwoman gestates and bears the baby. Specifically, ova are removed from thegenetic/intended mother and fertilized in vitro with sperm from either thehusband or, less commonly, from a donor. Fertilized eggs are then im-planted in the surrogate, who gestates the fetus to term. IVF may also beused for oocyte or embryo donation, wherein the intended mother assumesa gestational role in the reproductive process. Another woman donates herova, which are then fertilized in vitro, and implanted in the gestational/in-tended mother, or an embryo may be donated and implanted in the gesta-tional/intended mother.5

In the near future, other technologies will likely be developed andemployed, either with or without legal support. Of course, cloning, theultimate ART procedure, has achieved limited success in application tonon-human species, but may soon be preemptively prohibited in theU.S. with regard to its use among human subjects. Comparatively un-known is an IVF form, referred to as “trigametic” IVF, that would em-ploy sperm whose original genetic material had been replaced by thatfrom another person. If perfected, this technology should find signifi-cant popularity among lesbian couples who wish to conceive and beargenetically-related offspring (Velte, 1999).

Definitions of parent can be incredibly complex with ART. In defin-ing the permutations implicit with this technology, Eichler (1996) notesthat while three types of father roles are possible (a genetic/social one, anexclusively genetic one, and an exclusively social one), mother roles in-clude at least seven (a genetic/gestational/social one, a genetic/gestationalbut not social one, a social but not genetic/gestational one, a genetic but notgestational/social one, a gestational/social but not genetic one, a genetic/so-cial but not gestational one, and a gestational but not genetic/social).

Relative to AID, two fathering roles are possible: the genetic fatherand the social (or intended) father. Although involvement of an in-tended father has been the conventional practice, it is important to notethat his presence is increasingly being deemed unnecessary by singlewomen wishing to bear and raise children alone, and by those having acommitted relationship with a female partner who also intends to par-ent. Surrogacy arrangements and oocyte donation entail two womenplaying a combination of three roles: genetic mother, gestationalmother, and social (intended) mother. In traditional surrogacy, the rolesof genetic mother and gestational mother are joined in the surrogate,who is expected to deliver her offspring to an intended mother, having


no biological relationship with the baby. For purposes of gestationalsurrogacy and oocyte donation, the intended mother is actively involvedin the biology of reproduction by playing the role of genetic mother, inthe former, and gestational mother, in the latter.

In surrogacy arrangements, the intended mother generally is marriedto the baby’s genetic father, and hence the child has three parents. But,should donor semen be used, the child would have four parents. It ispossible, moreover, that the three mothering roles could each be per-formed by different women, and through the use of donor semen, donorova, and surrogate gestation, a child would have five parents. Of course,arrangements where neither intended parent is genetically related to thechild should be rare, since establishing this genetic link is the essentialreason that intended parents turn to ART. Unless in a nonadoptive sta-tus, they would likely select the simpler alternative of adoption.

LITERATURE REVIEW

Crticisms of ART

Early writings on ART were largely polemical and centered on thestatus and potential of the technology (Curie-Cohen, Lutrell, & Shapiro,1978; Edwards & Steptoe, 1980; Keller, 1971), the ethics of its usage(Baruch, D’Adamo, & Seager, 1988; Capron, 1984; Walters, 1983), itspossible impact on the status of women (Arditti, Klein, & Minden,1989; Corea, 1985; Firestone, 1970; Spallone & Steinberg, 1987) andits potential impact on the development of parent-child relationships(Rothman, 1989). For example, one of the first statements (Ogburn &Nimkoff, 1955) argued that AI might undermine family functioning.And while Firestone (1970) saw surrogacy as a liberating vehicle–onefreeing mothers from the burden of childbearing, Rothman (1989) chal-lenged the wisdom of this technology, proposing that the essentialbonding process between mother and child begins in gestation.

Feminist scholars, such as Rothman, have tended to be pessimisticabout ART, especially with regard to the issue of control. Zipper andSevenhuijsen (1987) noted that medical technocrats, rather than thosewho would use ART, have determined which technologies will be de-veloped and to whom will go access. Moreover, in criticizing the prac-tice of using IVF for male infertility, Lorber added that participatingmothers are exploited by a patriarchal system in which they are “. . . try-ing to maintain a relationship and have a child within the constraints of


monogamy, the nuclear family structure, and the valorization of biolog-ical parenthood, especially for men” (Lorber, 1992, p. 177). Feministslikewise have been disturbed about the potential of surrogacy to exploitpoor women who could be used as “breeders” by affluent couples (An-drews, 1984).

While early scholars thus tended to be negative about the adoption ofART, more recent research has begun to address two other, more empir-ically-based concerns: the social context of ART, and the law and ART.Studies examining the former, primarily the motives, roles, and rela-tionships among parties employing these technologies (Golombok,Cook, Bish, & Murray, 1995; Lasker & Borg, 1994; Ragone, 1994), areinstructive, but more basic to our purpose are those having a legal focus.

ART and the Law

Notwithstanding criticisms about the social practice of ART, re-search pertinent to law generally has been critical of the failure of courtsand legislatures to legitimate both ART and non-traditional parentingagents. For example, Blankenship, Rushing, Onorato, and White (1993)found early court decisions favored father interests at the expense ofmothers, gave greater weight to the biological contributions of fathers,and promoted the nuclear family over alternative structures. Such out-comes, according to the authors, ignored social conditions affectingwomen’s reproductive decisions and reflected bias in behalf of tradi-tional gender roles. Surveying statutes and cases relevant to AID, Henry(1993) likewise discerned that the state did not protect the interests ofwomen, particularly the unmarried, and proposed a paradigm for estab-lishing rights and responsibilities based on the intentions of the partiesinvolved. Finally, Robinson (1993) examining early state statutes andcourt cases concerning surrogacy, found that gestation and childbearingremained the dominant components in the legal definition of mother.However, she also discovered that increasing recognition had been ex-tended to genetic and non-biological considerations, including inten-tional behaviors and nurturance.

Robertson (1994) argued that rights to privacy in reproductive deci-sions established in Supreme Court decisions since Skinner v. Oklahoma(1942) should be extended to decisions to use ART. Such legitimation im-portantly would allow regulation to insure informed consent, counseling,record keeping, and legal rules to establish rights and responsibilities.6Robertson also called for the inclusion of various professional experts in


ART arrangements, especially clinical practitioners, in order to avoidexploitive or conflicting relationships. ART functioning in this manner, heproposed, should have minimal adverse effects on social roles or family re-lations.

More recent studies remain critical of the law’s continuing bias in be-half of the traditional family (i.e., two-parent, heterosexual). Dolgin(1996) proposed that cases involving reproductive technology highlightthe inconsistency between the traditional ideal and actual variability infamily behavior. Although long-based on hierarchy and ascription,American law in general has evolved increasingly toward individual-ism, contracts between legal equals, and relationships based on choice.Family law in certain respects (e.g., contraception, abortion, and di-vorce) has also changed. However, it has failed to do so in terms of par-ent/child relationships; in particular, the best interests principle persistsas a key standard in court decisions. According to Dolgin, this principleoften serves the objectives of adults regardless of the real interests ofchildren. By being vague, it allows courts to anchor decisions aboutART–reproduced children in the ideology of the traditional family de-spite the increasingly contractual nature of the modern family. For exam-ple, in Baby M, the decision to grant visitation to the genetic-gestationalagent, Mary Beth Whitehead, was presumably based on the best interestsof the child, but in reality gave preference to the rights of the birthmother (i.e., the surrogate) to be defined as the legal mother. Baby Mwas consequently caught in a conflicted relationship between two ge-netic parents who had never married nor lived together.

Similarly, Young (1998) and Storrow (2002) have concluded thatART statutory and case law overly restrict the definition of the familyand do not reflect the realities of contemporary family life. Young(1998) argued that such laws are consistent with the traditional concep-tion of the nuclear family as an “exclusive” unit. Specifically, ART lawshave functioned to exclude various important others involved in theART process, such as surrogates and gamete donors (either male or fe-male), who might later play critical non-custodial roles in the child’slife. Providing a demonstration of how ART might lead to the legitima-tion of non-traditional families, Storrow (2002) likewise recommendedthat the concept of “functional parent” should include those who playparent roles after the birth of a child, although without legal parental sta-tus, as well as those who declare their intention to parent prior to thebirth of the child.


Present Research: Objectives and Procedures

In this paper, we extend Robinson’s research (1993) by assessing thelegal response to AID, and as well, by examining additional surrogacystatutes and court decisions made since the early 1990s. We excludestatutes and court cases involving the use of IVF by married couples inwhich donor sperm or ova are not used, as this type of ART is not prob-lematic in defining parentage. Cases that dealt with either artificial in-semination or surrogate motherhood were identified by a Westlaw andLEXIS computer search of all cases listed prior to 2001. They were thencategorized by specific type of ART involved, by type of litigation, andby issues related to the use of ART. We then conducted a search of cur-rent state code books, identifying statutes which either dealt with artifi-cial insemination or surrogate motherhood. Statutes were categorizedby state, type of ART, and designations of relationships. We concludewith a discussion of the roles for clinical practitioners suggested by pre-vious research and our findings on the legal response to ART.

FINDINGS

Artificial Insemination by Donor

State Statutes. Any discussion of ART and legal definitions of parentagemust recognize the Uniform Parentage Act (UPA) authored by the Na-tional Conference of Commissioners on Uniform State Laws (1973,2000).7 The UPA does not define parentage in a legally binding sense, butrather provides a model for the development of relevant state laws, and inso doing, promotes legal consistency across state jurisdictions. Article 7deals with AID, as well as in vitro fertilization, and declares that the inten-tion to parent should be the determining criterion. The proposed act re-lieves all donors, whether of sperm or egg, of parental rights andresponsibilities, and the 2000 version specifically states that a sperm donoris relieved of such even if the woman is unmarried.

Thirty-five states have enacted statutes relevant to AID, and all ofthese bear on definitions of paternity.8 In the balance of states, the courtstypically use statutes pertaining to presumptions of paternity when therights and responsibilities toward the child are in question. No states ex-plicitly ban AID.

AID statutes serve to legally recognize and define the involvement ofvarious parties in the process. Eighteen states only sanction AID for


married couples.9 The language of statutes in fourteen states mentions themother only as “a wife” or “a married woman.” Others refer to “a motherand her husband.” Most of these statutes require the written or oral consentof the non-donor husband upon the initiation of the AID process. They alsostipulate that the husband is to be considered the natural father, preventingeither him or his wife from rebutting his paternity. For example, Louisi-ana’s statute declares that the husband cannot disavow paternity of a childborn as a result of AID of the mother to which he consented. Most states,many following the UPA, moreover specify that the semen donor is not tobe considered the child’s natural father–thus effectively precluding the do-nor or other parties from claiming that the donor has either rights or respon-sibilities toward the child. Many state statutes also require that the AIDprocedure be performed or supervised by a licensed physician. If not per-formed by one, then the semen donor may be considered the father of thechild by the courts.

Conversely, legitimation of AID among unmarried women, and inpractical regard, protection against paternity claims by donors or bymothers against donors, tends to be ambiguous.10 Only Ohio explicitlyrefers to the mother as either “married or unmarried,” and holds that the do-nor is not to be considered the legal father. A few states (New Hampshire,New Jersey, New Mexico, and Washington) relieve the donor of responsi-bility unless he and the mother have agreed in writing that he is to be the fa-ther. It should be noted also that some states do not expressly relieve thedonor of rights or responsibilities regardless of whether or not the mother ismarried.

Court Cases. In cases involving heterosexual married couples and chil-dren conceived by AID, the courts typically declare the husband to be thelegal father. Divorce rulings have usually required payment of child sup-port by the father and have allowed visitation rights.11 Court decisions inmost cases have been based on presumptions of paternity established bythe husband’s consent forming a contract to support the child, whetherwritten (People v. Sorensen, 1968), written but not filed (Lane v. Lane,1996), or oral (Gillem v. Gillem, 1997; Jackson v. Jackson, 2000; R.S. v.R.S., 1983). Mothers of AID children have been prevented from filing pa-ternity actions against the sperm donor following divorce also based on pa-ternity assumption (J.P.C. v. O.C.B., 2000). Even when the child wasconceived after separation, but before divorce, and consent is unclear(Young v. Remy, 1996, review denied by In re Marriage of Young, 1997),the husband has been required to pay child support. Exceptions to thesefindings include: Anonymous v. Anonymous (1989) in which the divorcinghusband was allowed to contest paternity, Welborn v. Doe (1990), in which


the court recommended the intended father adopt the child as the state stat-ute did not explicitly relieve the donor of his parental rights, and Krambulev. Krambule (1999), in which the husband was not required to pay childsupport as he had withdrawn AID consent.

When a couple did not marry but cohabited (Paraskevas v. Tunic,1997), the social father, in the absence of contract, was granted non-parentstanding and allowed to petition for visitation rights. When a social fatherand his cohabitating partner signed an agreement, (Dunkim v. Boskey,2000), the court recognized the social father as the legal father.

In the absence of legislation dealing with the use of AID by singlewomen, courts have relied on intentions of parties and subsequent be-haviors. Cases often have involved attempts by semen donors, whoknew mothers, to have paternity legitimated. In one early case (M. v. C.,1977) where intentions were unclear, the appellate court upheld visitationrights granted to the donor, declaring him to be the natural father. Thecourt, which also required that he pay child support, based the decision onthe best interests of the child–in this case defined as the child having twoparents. The Colorado Supreme Court, in what appeared to be a singlewoman situation in In Interest of R.C. (1989),12 agreed with the decision inJhordan C. v. Mary K., (1986),13 that held that a single woman did not losethe protection of AID statutes preventing semen donors from establishingpaternity when the donor was known. Rather, such protection was only lostwhen agreement and subsequent behavior indicated that the donor wastreated and/or allowed to act as the father of the child. This rationale was re-stated in Thomas S. v. Robin Y. (1994, “reconsidered” in Thomas S. v.Robin Y., 1995a, and “appeal dismissed without opinion” in Thomas S. v.Robin Y.,1995b). This case, by the way, has been depicted as a particularlyinstructive lesson for lesbian couples: i.e., for those wishing to avoidthird-party intrusion, only semen from donors who are anonymous shouldbe employed (Young, 1998; Velte, 1998). Exceptions to donors receivingrights include Leckie v. Voorhies (1994), where the donor was preventedfrom entering an order of filiation–but again this decision was based on theoriginal intentions of the parties, and L.A.L. v. D.A.L. (1998, “rev’d and re-manded, Lamaritata v. Lucas, 2002).14

The courts have been far less willing to extend parental rights to theformer female partners of mothers using AID. For example, Curiale v.Reagan (1990) involved a motion of de facto parentage and visitationrights by the female ex-partner of the mother of a child conceived by AIDduring their relationship. The plaintiff had provided sole support for themother and child. Although both signed a joint custody agreement, themother changed her mind and refused to share custody. The lower court


dismissed the motion based on a lack of standing under California statutes,and the appellate court affirmed. Parental and/or visitation rights also havebeen denied due to lack of standing (West v. Superior Court, 1997; White v.Thompson (In re Thompson), 1999), no cause for action (Music v.Rachford,1995), and the best interests of the child (Guardianship ofZ.C.W., 1999, cert. denied, Sub nominee at Crandall v. Wagner, 1999; S.F.v. M.D, 2000).

In other cases, partners who had not formally established relation-ships were allowed to petition for custody and/or visitation rights. InHoltzman v. Knott (1995), a woman brought suit pertaining to the custodyof her ex-partner’s AID-conceived five-year-old whom she had supportedand helped raise since birth. The appellate court denied the petitioner cus-tody, although it did direct the lower court to consider visitation based onthe child’s best interests.15 Similarly in T.B. v. L.R.M. (2000, aff’d T.B. v.L.R.M., 2001), the appellate court ruled the partner had standing and re-manded to a lower court determination of custody and visitation based onthe best interests of child (see also Barnae v. Barnae, 1997). And in E.N.O.v. L.M.M. (1999, cert. denied L.M.M. v. E.N.O., 1999), the appellate courtaffirmed a lower court’s decision for temporary visitation pending trial onthe merits of a co-parenting agreement in determining joint custody andvisitation rights. A motion to dismiss an ex-partner’s petition for visitationrights was denied in one case (J.C. v. C.T, 2000), and the petition was al-lowed to proceed to be decided on the establishment of a parent/child rela-tionship. And finally the New Jersey Supreme Court reversed an appellateand lower court decision that an ex-partner lacked standing to sue for cus-tody, but ruled that after four years of litigation, it was not in the best inter-ests of the child to allow the ex-partner a decision-making role in thechild’s life. However, a decision to grant visitation rights was affirmed(V.C. v. M.J.B., 2000, cert. denied M.J.B. v. V.C., 2000).

While ex-partners have thus not generally fared well in obtaining pa-rental legitimacy following termination of lesbian relationships, thosewho have been able to adopt may be able to retain at least a semblanceof ties with their partner’s offspring. When lesbians have established aparent/child relationship through adoption, for example, they have beenallowed to sue for visitation rights (Lisa Laspina-Williams v. CherylLaspina-Williams, 1999).

Lesbian adoption is clearly problematical, however. In many states,same-sex partners are deemed morally unfit to adopt, particularly wherehomosexual behavior is defined as criminal. Moreover, adoption by ei-ther gays or lesbians is prohibited in several states outright by statute orby the requirement that only the legally married can adopt partner’s


children (Skinner & Kohler, 2002). Court cases decided against lesbi-ans, reflecting the interpretation that second-parent adoptions shouldonly be limited to heterosexual couples, include In re C.C.G. (2000, va-cated by, remanded by, sub nominee, In re Adoption of R.B.F., 2002), In reAdoption of Baby Z. (1999), and In re Ray. (2001, aff’d in part and rev’d inpart, cause remanded, sub nominee In re Bonfield, 2002).

Nonetheless, several recent cases suggest emerging support for les-bian adoptions. In Matter of Adoption of Caitlin (1994) was brought bytwo different lesbian couples, whose cases were combined given their sim-ilarity. Each petitioned for the adoption of two children. The partners weregranted adoption of the children, three conceived via AID, based on thebest interests principle. Likewise, in In re K.M. (1995), the court reversed alower court’s refusal to rule on the adoption of a child conceived throughAID (donor anonymous). The appellate court found that the female part-ners did have standing, and remanded the petition to the lower court to de-termine if adoption was in the child’s best interests.16 Similarly, theMassachusetts Appellate Court remanded a lower court denial of waiver ofhome assessment for adoption back to the lower court for a decision, stat-ing that the denial of the petition by two women in a committed relation-ship must be justified by factors other than a same-sex relationship(Adoption of Galen, 1997). Finally, state legislatures may be moving to-ward greater acceptance of such practices as indicated by recent affirma-tions in Vermont and Connecticut that same-sex couples have an explicitright to adopt (Skinner & Kohler, 2002).

Surrogate Motherhood

State Statutes. Fifteen states have statutes relevant to surrogate mother-hood.17 Nine states both prohibit commercial surrogacy and fail to legiti-mate noncommercial surrogacy.18 When parentage is designated in thesestatutes, it is based on traditional presumptions of maternity, paternity, andlegitimacy (i.e., the surrogate becomes the legal mother and her husbandthe presumed father (e.g., Arizona and Utah)) or on genetics, and call forrelationships to be adjudicated in custody suits according to the best inter-ests of the child (e.g., Indiana, Michigan, and Utah). A tenth state, NorthDakota, prohibits traditional surrogacy arrangements, but exempts gesta-tional surrogacy from the prohibition and declares the genetic mother to bethe legal mother.

Noncommercial surrogacy is explicitly legitimate in only five states:Arkansas, Florida, Nevada, New Hampshire, and Virginia. All considerthe intentions of the contracting parties in defining parent/child rela-


tionships, and two states (Florida and New Hampshire) allow the surro-gate to change her mind after the birth of the baby with some limitations.It is important to note that Nevada legitimates only gestational surro-gacy, and that this arrangement is only available to married couples.The intended mother is declared the legal mother in Arkansas, Nevada,New Hampshire, and Virginia. Statutes in one state, Florida, distinguishbetween gestational and traditional surrogacy, specifying that the birthmother is to be considered the legal mother in traditional surrogacy, andthe intended mother is to be considered the legal mother in gestationalsurrogacy. Commercial surrogacy is banned in every state having surro-gacy statutes, except Arkansas, which does not statutorily deal withcompensation issues.19 Arkansas is also the only state that allows surro-gacy by single parents.20

Court Cases. Surrogacy arrangements made in the forty-five states thatfail to legitimate its non-commercial use function within a legal void. Inthese states, courts have turned to extant statutes concerning artificial in-semination, adoption, parent/child relationships, and contracts to decide le-gal issues. Although most of these states have laws against financialcompensation for adoption, such laws are inconsistently applied to surro-gacy.21

In traditional surrogacy arrangements, the contracting male (the ge-netic/intended father) may establish his paternity by rebutting the pater-nity of the surrogate’s husband or entering an order of filiation. Onbehalf of both the surrogate and the biological father, the Michigan Su-preme Court in Syrkowski v. Appleyard (1985) allowed the rebuttal of pa-ternity of the surrogate’s husband and remanded the case to the lower courtto act on the order, holding that state artificial insemination statutes re-quired husband consent (which the surrogate’s husband had not given) (seealso Turchyn v. Cornelius, 1999, on rebuttal of paternity in an informal sur-rogacy agreement). However, the New York family court in Anonymous v.Anonymous (1991) dismissed an order of filiation filed by the genetic fa-ther, and supported by the surrogate’s husband, refusing to deny the pre-sumption of paternity.

Regardless of who has been deemed the legal father, the surrogatemother has been defined as the legal mother in traditional surrogacycases. She must therefore relinquish her parental rights if the intendedmother is to adopt the child. Sometimes this process is accomplishedwithout dispute, as in In re Baby Girl L.J. (1986) and In re Adoption ofBaby A (1994). The intended mother may attempt to adopt in another stateif her residential state prohibits surrogacy (In re Adoption of Samant,1998). Even if the intended mother has not filed for adoption, she has been


allowed to petition for custody in a divorce case as an interested third party(Doe v. Doe, 1998, overruled in part by In re Joshua S., 2002).

Should the surrogate not relinquish parental rights, the biological fa-ther (i.e., genetic and intended father) generally has been allowed tofight for custody of the child, with the decision being ultimately basedon the best interests of the child. The Supreme Court of New Jersey inthe notorious In re Baby M. (1988, superseded by statute as stated in In reAdoption of Children by G.P.B., 1999) granted sole custody of the baby tothe biological father, William Stern, although the surrogate, Mary BethWhitehead, retained her status as legal mother and was awarded visitationrights. Stern had sought enforcement of the surrogacy contract so that hiswife could adopt the baby. However, the court ruled that Whitehead’s pa-rental rights could not be terminated without her being declared an unfitmother (see also R.R. v. M.H., 1998, on enforcement of contract, In Re Si-mon A.W., 1997, and Doe v. Roe, 1998, on court jurisdiction).

Another notable case, In re Marriage of Moschetta (1994), involved athree-way dispute over parental rights, maternity, and custody between thesurrogate, the biological father, and his wife, the intended mother. The sur-rogate claimed she had allowed the Moshettas to take the newborn home,but did not give consent for adoption because they were having maritalproblems during the pregnancy. Mrs. Moschetta sought to establish mater-nity after her husband had separated from her and had taken the baby. Thelower court ruled that Mrs. Moschetta was not the legal mother andawarded custody to her husband and the surrogate. Mr. Moschetta then un-successfully challenged the surrogate as legal mother by seeking to havethe contract enforced. The appellate court affirmed the maternity of the sur-rogate and remanded the case to a lower court to determine if custodyshould reside with only the father, with visitation for the surrogate, basedon the best interests principle. In another case involving a custody disputebetween the biological father and his wife who had adopted the child(Brasfield v. Brasfield,1996), the appellate court upheld a lower court’s de-cision to award custody to the adoptive mother.

Once the surrogate has given consent to the adoption, it is difficult forher to withdraw that consent. A single surrogate in Adoption of MatthewB. (1991, cert. denied Nancy B. v. Charlotte M., 1992), although consid-ered the natural mother, failed in her attempt to withdraw her consent toadopt and to vacate a judgment of paternity. As in the Baby M case, thecourt found that the child’s interests were best served by remaining with thebiological father and his wife. However, surrogates may retain certainrights. In Baby M, the surrogate was deemed the legal mother and awardedvisitation, and in another case (Huddleston v. Infertility Center of America,


Inc., 1997), a surrogate whose baby was adopted and later killed by the sin-gle father was allowed to sue the surrogacy agency, in her capacity asadministratrix of the child’s estate, for negligence in failing to adequatelyscreen participants.

Finally, a few cases have been adjudicated involving more complexsurrogacy arrangements wherein the female reproductive role was di-vided between genetic contribution and gestation. The appellate courtdeclined to issue a report in Smith v. Brown (1999) on a gestational surro-gacy arrangement due to a lack of complaint. In this case, there was no dis-pute over maternity as the surrogate was the genetic/intended mother’ssister. The genetic/intended parents sought to have their paternity and ma-ternity declared prior to the birth. The lower court entered a judgment ontheir behalf, requesting a review by the appellate court that was declined.Anna J. v. Mark C. (1991) centered on a gestational surrogacy, and re-quired the court to grant parental status and custody to either the gestationalmother or the genetic/intended mother. Mark and Crispina Calvert, unableto have a child because she had had a partial hysterectomy, hired an unmar-ried woman, Anna Johnson, to gestate an embryo conceived in vitro withMark’s semen and Crispina’s ovum. The relationship between the Calvertsand Johnson deteriorated during her pregnancy, and they brought suitagainst each other. The California Supreme Court ultimately declared thatthe genetic mother (Crispina) was the legal mother. They did not reach thisdecision, however, by finding that the genetic mother has priority over thegestating mother as had the appellate court. Holding that both motheringforms had equal standing, they instead based their decision on what theydetermined to be the original intentions of the parties.

Although the above decision did not indicate a preference for the ge-netic/intended mother in gestational surrogacy arrangements, a subse-quent case is suggestive of this outcome. In Belsito v. Clark (1994) thecourt granted the petition of the genetic parents, uncontested by the gesta-tional mother, to be declared the legal parents of the child. The birth certifi-cate had listed the surrogate as the mother and the child as illegitimate, butthe court declared the maternal and paternal presumption as “. . . subordi-nate and secondary to genetics” (p. 767), and that the genetic parents werethe child’s natural parents. While this decision was made beneath the ap-pellate level and thus does not set precedent, it may serve to direct futurecases.

Attempts by the genetic/intended mother to establish maternity havemet with mixed success. The court in the uncontested case of Andres A.v. Judith N. (1992) granted the genetic father’s petition for paternity, butdenied the genetic/intended mother’s petition for filiation of maternity as


not having been covered by statute. The court did note, however, that thelatter could seek a remedy through adoption. On the other hand, in Soos v.Superior Ct. County of Maricopa (1994), the court did not define the ge-netic/intended mother as the legal mother, but it did agree with a lowercourt ruling that the Arizona statute specifying that the gestational surro-gate should be the legal mother is unconstitutional. The genetic/intendedmother had argued successfully under the equal protection clause that sheshould have the right to rebut the maternity of the gestational surrogate, justas her husband, the genetic father, could rebut the paternity of the surro-gate’s husband. The husband appealed the decision as his wife had filed fordivorce and he did not want to contest custody with her; he intended to havethe gestational surrogate give up her parental rights. The court allowed thelower court decision to stand, adding that the child should not be left with-out a mother.

While surrogacy cases generally involve no more than two mothers,two cases were found involving three mothers. In re Marriage of Litowitz(2000, rev’d Litowitz v. Litowitz, 2002) involved a divorcing couple and adispute over frozen embryos. The frozen embryos remained from an IVFprocedure in which a donor embryo from one woman was implanted in agestational surrogate (the second woman), and the resulting child given to athird woman, Mrs. Litowitz. Mrs. Litowitz wanted to have the remainingembryos implanted in another gestational surrogate, and the husbandwanted the embryos donated. The court ruled the embryos should be do-nated. In re Marriage of Buzzanca (1998) involved a California couplewho hired a surrogate to gestate a donated embryo genetically unrelated tothe couple or the surrogate (in effect, the child had five parents). Both hus-band and wife consented to the process, but one month before the baby wasborn, the couple separated. The husband fought the inclusion of child sup-port in the divorce agreement. The lower court declared that the child had“no parents” and suggested that the child could be adopted by the socialmother. The social mother appealed, and the appellate court declared thesocial mother and father to be the parents, and remanded the case back tothe lower court to decide issues of child support and visitation.

Finally, in what may be considered a de facto surrogacy arrangement,the embryo of Mr. and Mrs. Perry-Rogers was mistakenly implanted intoMrs. Fasano during an IVF procedure. Both couples were informed of themistake about one month after the implantation. Mrs. Fasano chose to con-tinue the pregnancy and, after the birth, surrendered the baby to its biologi-cal/intended parents, but only after the Perry-Rogers signed an agreementto allow the Fasanos visitation. The Perry-Rogers had been granted cus-tody of the child in an earlier case, and then sought to reverse a lower court


decision granting visitation rights to the Fasanos (Perry-Rogers v. Fasano,2000, appeal denied Perry-Rogers v. Fasano, 2001). The case was re-versed and visitation rights were removed.

IVF and Oocyte Donation

In most instances, IVF and IVF using oocyte donation should notpose legal problems for defining parentage as the intended mother isalso the gestational mother, and her husband is presumed to be the fa-ther. Nevertheless, three situations might pose problems as indicated byrelevant case law.

First, in IVF utilizing oocyte donation, maternity might be chal-lenged in the event of a divorce. For example, in McDonald v. McDonald(1994, “findings of fact/conclusions of law at” McDonald v. McDonald,1998), the court heard an appeal of a lower court decision to grant tempo-rary custody to Mrs. McDonald, the gestational/intended mother. The es-tranged husband argued that she should not have maternity rights as thechildren (twins) had not been reproduced from her ova. The court affirmedthe lower court decision, nonetheless, and held that his wife was indeed tobe considered the legal mother on the basis of the original intentions of theparties. (Two states, Florida and Oklahoma, specifically relieve an oocytedonor (genetic mother) of responsibility.)

Secondly, paternity might be an issue if an IVF procedure took placeafter a divorce or if donor semen was utilized in the procedure. For ex-ample, in In Interest of O.G.M. (1999), the embryo created from ovum andsperm from a married couple was not implanted until after they divorced.The appellate court affirmed a lower court decision granting the husband’spetition to be declared the legal father.

Finally, definitions of parentage might become problematic if an IVFclinic should make a mistake in the embryo transfer process (seePerry-Rogers v. Fasano above).

Summary of Findings for ART Statutes and Litigation

State Statutes. About two-thirds of all states have legitimated AID. Stat-utes generally serve the twin purpose of identifying who may use this tech-nology and who is responsible for the welfare of AID-produced offspring.About half of these states legitimate AID only for married couples, and pre-sume husbands to be legal fathers unless they had withdrawn consent priorto conception. Statutes likewise typically relieve donors of responsibility


for the child. Notwithstanding the latest version of the UPA, few states ex-plicitly sanction AID for unmarried women.

Surrogate motherhood has received far less legislative direction thanartificial insemination: less than one-third of all states have enacted stat-utes. Most of these have side-stepped defining parentage through lawsthat prohibit commercial surrogacy, while failing to legitimate noncom-mercial surrogacy. In the five states that legitimate noncommercial surro-gacy, the assignment of parental rights and obligations is a contractualmatter guided by the intentions of the parties. In two of these states,gestational surrogacy, but not traditional surrogacy, is sanctioned–thussignifying preference for the genetic definition. In two other states, rec-ognition of the biological link allows women who reproduce throughtraditional surrogacy to change their minds. Oocyte donation has re-ceived even less attention: two states have pertinent statutes, both re-lieving the genetic mother of responsibility.

Court Cases. As the assignment of parentage has become problematicalgiven the multiplicity of parenting agents with ART, courts have increas-ingly turned to nonbiological evidence, mainly the best interests of thechild and the original intentions of parties. In terms of the latter, agreementto serve as AI donor or to participate in a surrogacy arrangement, consentfor oocyte or embryo donation, or consent for adoption have served as ex-plicit statements. Various behaviors, such as the provision of economicsupport, suggest intentions when such documents have not been available.This application of explicit or implied intentionality indicates that contractlaw has thus become an additional means by which a parent/child relation-ship is legitimated.

AID cases have primarily centered on the rights and responsibilitiesof mother’s ex-partners to AID children following the dissolution ofmarriage or cohabitation. Consent and presumptions of paternity, whereconsent has been absent, have served as rationale for holding ex-hus-bands responsible for support. Cohabiting men also have been held re-sponsible if they agreed to the procedure; they have obtained visitationrights regardless of the presence of contract. Cases following the disso-lution of lesbian relationships, conversely, have centered on ex-part-ner’s attempts to obtain parental standing. Although such litigation hashad little success, even with evidence of long-term financial supportand involvement in the lives of offspring, those lesbians who hadadopted partner children increasingly have been granted visitationrights. Legal suits initiated by AI donors wishing to establish paternitygenerally have not been successful unless prior agreements had been


contracted, or subsequent behavior suggests they had acted as social fa-thers.

Case law involving surrogacy largely reflects the adjudication of pa-rental rights between contending parties. Traditional surrogacy caseshave centered on genetic/intended fathers suing surrogates who wereunwilling to relinquish rights to AI–conceived offspring. Custody out-comes generally have been based on the best interests of the child and,to a lesser extent, on presumptions of maternity and paternity. In gesta-tional surrogacy, gestating mothers not willing to relinquish rights havetended to be even less successful in light of the biological link betweenoffspring and intended parents. Original intent has served as an impor-tant rationale for decisions in these cases. Moreover, the increasingcredibility of laboratory tests should make the biological link even morerelevant in allowing non-gestational (genetic/intended) mothers to rebutthe maternity of gestating mothers. Finally, cases concerning donatedembryos either gestated by the intended mother or by a third woman es-sentially have been decided according to the original intentions of theparties.

ART AND CHANGING SOCIAL ROLES

It is clear that the legal trends discussed herein are occurring withinthe context of more inclusive recent changes in American social struc-ture and attitudes. The variability in legal definitions of father andmother now emerging through ART, for example, mirrors the reality ofchanging gender-role and parenting definitions in general. Whereas notlong ago fathers primarily related to children in terms of providing eco-nomic support, they are now assuming care-giving and nurturing roles(Pleck, cited in Mariglio, Amato, Day, & Lamb, 2000). Early AID courtcases involving divorce found husbands trying to avoid support by de-nying paternity. Now donors are suing birth mothers so they can haveaccess to children, and surrogacy cases show fathers claiming thatex-wives are not legitimate mothers in order to gain sole custody.

Another case in point is the legitimation of ART for single women.While limited to a few states at present, it reflects both the increasingprevalence and the growing social acceptance of single-parent families.For many, being married is no longer viewed as a prerequisite for repro-duction, and women, who bear children alone by necessity or choice,are far less stigmatized today than in the near past. The increasing rec-ognition of contractual parenting through AID and surrogate arrange-


ments also mirrors the growing autonomy and assertiveness of bothsingle and married women throughout American society.

Finally, the recent adoption of AID-conceived children by lesbianpartners should be recognized in light of broader social changes, particu-larly, the increasing demands by gays and lesbians for full and legitimateparticipation in all social institutions, including marriage and family, andthe growing tolerance of the public towards them. Survey research(Yang, 1997), for example, indicates rising support for gay and lesbianrights: while most Americans are still reluctant to endorse homosexualmarriage or adoption (Pew Forum on Religion and Public Life, 2003),they also no longer believe that discrimination in such areas as employ-ment and housing should be allowed to persist.

Nonetheless, resistance to the legitimation of ART remains substantialdespite such broader social changes. For one, those who argue that thefamily as a social institution is deteriorating are likely to see the growingemployment of ART as further evidence of its impending demise. Acompelling state interest in the protection of the family has been estab-lished by the courts, and procreative liberty rights have not yet been ex-tended in court decisions to include ART. The use of ART could possiblythus be prohibited altogether or remain only accessible to specific popula-tions, such as married heterosexuals. Yet, the law has never explicitly de-fined “family,” although court decisions have to be interpreted todemonstrate a legal preference–such as those holding that a child’s inter-ests are best-served by having two parents. The prohibition of ART hasbeen based consequently on other issues (for example, bans against sur-rogacy have primarily reflected concerns about compensation).

Even in the face of prohibition, nevertheless, it is doubtful that peoplewill refrain from employing ART. The decision to establish familiesthrough this technology is indicative of the great value that Americanscontinue to place on genetically-related offspring. It appears evident aswell that those who desire parenthood so much that they would use ART,also would put a great deal of effort into becoming an effective parent(Golombok et al., 1995). Legitimation would protect their interests andwould likewise serve the interests of the growing number of childrenproduced through this technology.

IMPLICATIONS FOR CLINICAL PRACTITIONERS

Clinical practitioners may provide services at any stage in the processof ART utilization, and their clients may be considered to be anyone


participating in the procedure. Participants would not only include ge-netic, social, and gestational parents, but the potential or actual off-spring, as well as medical and legal specialists.

Even prior to deciding to initiate an ART procedure, practitionersmay counsel couples who are adjusting to the pronouncement that theyare infertile. Couples frequently respond to infertility as they would tothe death of a child, experiencing significant grief reactions. Greil(1991) found that women were more likely than men to assume a“spoiled identity” following a diagnosis of infertility, sometimes result-ing in infertility becoming a master status. Practitioners may providesupportive therapy to infertile clients during this process. Individualswho go through genetic counseling may also work with social workers,psychologists, or psychiatrists, who may highlight alternatives for utili-zation of ART. Thus, as couples initiate ART involvement, they may al-ready have experience with employing clinical practitioners to helpwith the resolution of psychosocial issues.

ART utilization begins with consideration of participation. The roleof clinical practitioners at this stage involves preparatory counseling toexplore involvement in a new experience, and what that involvementmight mean to the couple or individual. Such counseling should ac-quaint them with the demands of ART participation and allow them toanticipate their feelings. Preparatory counseling should examine issuesin common with adoption, but also those that are unique, such as thephysical intrusiveness of some procedures and the significant financialcosts that will be incurred without reasonable certainty of success.

Knowledge of the legal definitions of parentage can be useful to clin-ical practitioners at this stage so that client participation reflects truly in-formed consent. Practitioners thus may serve as educators for clientconsumers and for information and referral. They may familiarizethemselves with the legal status of usage of ART, legal definitions ofparentage, and possible sources of legal conflict through literature suchas the present piece, and through workshops and consultation with legalexperts. For example, one of the authors recently attended a continuingeducation program on ART in which the process of adoption of em-bryos from other states was summarized. Legal knowledge will be espe-cially critical for those practitioners who serve as advocates foralternative families. Lisa Laspina-Williams v. Cheryl Laspina-Williams(1999) is a case in point, underlining the importance of adoption peti-tions to lesbian and gay partners not biologically related to the child sothat their rights can be protected in the event of relationship dissolution.Although practitioners should be familiar with state statutes and case


law, they should also insist that clients seek legal advice prior to finaliz-ing their decision. Practitioners might facilitate such referral by provid-ing clients with a list of local lawyers having relevant expertise.

Very importantly, practitioners should counsel clients as early aspossible about the strains and conflicts that could arise between partiesparticipating in the ART process. Court cases involving disputes overrights to ART–conceived children make us mindful of the emotionalbonds that can develop between a social parent and a child, a surrogateand a child, or even between a gamete donor and a child. While statutesor court decisions may define legal parentage, such bonds cannot belegislated or litigated away. Counseling clients about the nature of at-tachments, and the fact that they are normal within the context of ART(Fischer & Gillman, 1991), should help intentional parents to better un-derstand and deal with those key others who may be assisting them inthe process.

Prior to ART procedures, clinical practitioners may also conductpsychosocial assessments. In this capacity, they would importantly seekto protect the interests of the children to be produced through ART.Where surrogacy is legitimate, state statutes often require that couplesand surrogates be screened by social workers (given that constitutionalrights have not been extended to the utilization of ART, such screeningis not considered to be in violation of participant’s rights). Courts em-ploy these assessments in their decision to endorse or reject contractsand to determine if a woman is fit to serve as a surrogate (see Virginia’ssurrogacy statute). Practitioners may also find that screening tools usedin adoption can be modified for ART clients (Parker, 1984).

Once the decision has been made to participate in ART, clinical prac-titioners may serve clients with supportive therapy. Some ART proce-dures are expensive, time consuming, physically painful and exhausting,and emotionally draining. Additionally, certain procedures have very lowsuccess rates (ISLAT Working Group, 1998). Participants in IVF, inparticular, may need supportive therapy to adjust to failed at-tempts–failures which can be especially difficult for those who havealso had to deal with the grief associated with infertility. Additionally,participants may seek counseling to facilitate decisions on whether tocontinue ART participation or abandon their quest for a genetically-re-lated child. Participants who are without partners may especially benefitfrom supportive therapy during pregnancy.

Following successful ART procedures, clinical practitioners may beutilized in a variety of ways. Parents of children born as a result of ARTmay seek counseling regarding the advisability of, and manner in


which, children should be informed of the nature of their birth (seeMcWhinnie, 1996, on scripts and scenarios for dealing with children’squestions). Singles and lesbian and gay couples who have parentedthrough ART may find counseling useful in dealing with issues relevantto alternative families.

ART–conceived offspring may also significantly benefit from coun-seling as they move through the lifecycle. They are similar to adoptees,step-children, and single-parent children in that they are not apt to haveall biological parents involved in their lives. Likewise, they may notonly feel abandoned by their absent parent(s), but have a deep need tofind and relate to him, her, or them. (Indeed, this need can even extendto donor siblings as is evident in the recent creation of an Internet regis-try by an AID–conceived boy and his mother (Kramer & Kramer,2000)). While we are not suggesting that all ART–conceived offspringrequire counseling, no doubt many would benefit from it. Practitionersmust become familiar with state policies regarding donor anonymity.

Practitioners may also serve as mediators should disputes arise be-tween participants in ART as to their rights and responsibilities (seeWilhelmus, 1998, on the use of mediation in interpersonal disputes).Resulting litigation can add to the great financial expense and emotionalpain already experienced by participants. Mediation, although not le-gally binding, may serve to avoid adjudication, recognize the emotionalaspects of the conflict, and facilitate reasonable compromise amongparticipants (see also Strom-Gottfriedson, 1998, on the use of negotia-tion to resolve conflict between unequal parties). Genograms may beused to facilitate the mediation process by clarifying relationships to thechild (McGoldrich & Gerson, 1985). Knowledge of court cases and leg-islation is especially critical for practitioners at this stage in the ARTprocess. For a mediated agreement to become legally binding, it mustinvolve a written contract or a court order (Wilhelmus, 1998).

We should add that some practitioners may find their involvement inART ethically problematical. For example, accusations have been ad-vanced that the employment of ART by singles and homosexual cou-ples undermines the family as a social institution, that financialcompensation for surrogates is equivalent to baby selling, and that thisarrangement is tantamount to class exploitation in light of the typicallygreat economic inequalities between intentional parents and surrogates.Practitioners should examine these debates, identify their positions, andthen determine if and how they should deliver their professional ser-vices to clients.


Finally, clinical practitioners can play a highly instrumental role inexpanding our knowledge about the social and psychological conse-quences of this technology. Given that little is known of the long-termeffects of ART usage, they will gain important understandings and in-sights through the counseling relationship. Such information generatedby practitioners, in turn, should have critical value for policy-makers asthey shape laws that would best serve the interests of the various publicsinvolved with this technology.

NOTES

1. Artificial insemination less often involves impregnation by combined husbandand donor’s semen (AIC) or by semen of the birth mother’s husband (AIH). AIH andAIC may be used when the husband’s sperm count or motility is low, and, in addition,AIH may be used if the husband is impotent or has an irregular penis. AID may be alsoused if the husband is azoospermic or to avoid transmission of a genetic abnormality, orin cases of RH factor incompatibility (Snowden et al., 1983). Any infertility treatmentmay be used for infertility of nonspecific origin.

2. While AID was first successfully accomplished over a century ago in the UnitedStates, immediate reaction to it was negative. However, by the 1970s, it was commonlybeing prescribed for infertile couples (Curie-Cohen et al.,1979; Snowden & Mitchell,1983).

3. Traditional surrogacy is typically arranged due to a failure to ovulate or an in-ability to gestate a fetus to term. It may also be used to avoid transmission of genetic ab-normalities or if a pregnancy would seriously threaten the woman’s health.The first commercial traditional surrogacy arrangement in the United States occurredin 1980. It is difficult to determine prevalence today. As of 1994, there were eight sur-rogacy agencies, but surrogacies arranged through private lawyers appear to be com-mon (Ragone, 1994).

4. IVF was first used for women with blocked or missing fallopian tubes.Subsequently, it has been employed for male infertility. More recent refinements in-clude zygote intra-fallopian transfer (ZIFT) and gamete intra-fallopian transfer(GIFT).The first successful IVF procedure occurred in England in 1978. Since then, IVF clin-ics have been established in the United States with varied degrees of success(D’Adamo, 1988; Lasker & Borg, 1994).

5. Gestational surrogacy may be used when a woman ovulates, but cannot gestatedue to abnormalities in the uterus, a lack of a uterus, or when gestation would endangerthe woman. The first gestational surrogacy occurred in 1986 (Ragone, 1994).

6. Of the technologies just outlined, AID is by far the most commonly employed inthe U.S., accounting for approximately 60,000 annual births by the late 1990s. Surro-gacy arrangements, on the other hand, were estimated as producing only about 1,000births (ISLAT Working Group, 1998).


7. See also Eichler (1996), who examined the policy recommendations of the Ca-nadian Royal Commission on New Reproduction Technologies and found that onlyfive out of 293 recommendations contained family-oriented rationales; the New YorkState Task Force on Life and the Law (1998), on policy recommendations for NewYork state law, and Langdridge and Blyth (2001), on European laws.

8. The Uniform Parentage Act, 2000, borrowed heavily from, and supercedes, theUniform Status of Children of Assisted Conception Act, 1988, authored by the sameorganization.

9. Artificial insemination statues include Alabama Code Sec. 2617-21, AlaskaStat. Ann. Sec. 25.20.045, Arizona Rev. Stat. Ann. Sec. 12-2451, Arkansas Code Ann.Secs. 9-10-201 to 202, California Civ. Code Sec. 7005 (a)(b), Colorado Rev. Stat. Sec.19-4-106, Connecticut Gen. Stat. Ann. Secs. 45-69f to 69n, Florida Stat. Ann. Sec.742.11, Georgia Code Ann. Sec. 19-7-21, Idaho Code Secs. 395401 to 5407, IllinoisAnn. Stat. Ch 750, Para. 40, Kansas Stat. Ann. Secs. 23-128 to 23-130, Louisiana Stat.Ann. Art. 188, Maryland Est. & Trusts Code Ann. Sec. 1-206 (b), Massachusetts Gen.Laws. Ann. Ch. 46 Sec. 4B, Michigan Comp. Laws Ann. Sec. 333.2824 (6), MinnesotaStat. Ann. Sec. 257.56, Missouri Ann. Stat. Sec. 193.085, Montana Code Ann. Sec.40-6-106, Nevada Rev. Stat. Sec. 126.061, New Hampshire Rev. Stat. Ann. 168 B:1through 32, New Jersey Stat. Ann. Sec. 9:17-44, New Mexico Stat. Ann. Sec. 40-11-6,New York Dom. Rel. Law Sec. 73, North Carolina Gen. Stat. Sec. 49A, North DakotaCentury Code Secs. 14-18-01 to 07, Ohio Rev. Code Ann. Secs. 3111.30 to 38,Oklahoma Stat. Ann. Ch. 24, Secs. 551-553, Oregon Rev. Stat. Secs. 109.239 to109.247, 677.355 to 677.370, Tennessee Code Ann. Sec. 68-3-306, Texas Fam. CodeAnn. Sec. 12.03, Virginia Code Secs. 20-156 to 20-165, Washington Rev. Code Ann.Sec. 26.26.050, Wisconsin Stat. Ann. Sec. 891.40 and Wyoming Stat. Sec. 14-2-103.

10. States explicitly legitimating AID for only married couples are Alabama,Alaska, Arizona, Florida, Georgia, Kansas, Louisiana, Maryland, Massachusetts,Michigan, Minnesota, Missouri, Montana, Nevada, New York, North Carolina,Oklahoma, and Tennessee.

11. Statutes in Arkansas, California, Colorado, Connecticut, Idaho, Illinois, NewHampshire, New Jersey, New Mexico, North Dakota, Ohio, Oregon, Texas, Virginia,Washington, Wisconsin, and Wyoming may provide such protection.

12. Cases that follow the pattern of recognizing a child conceived by AID during amarriage as legitimate and assigning rights and responsibilities of parenthood to theex-husband upon divorce include Strnad v. Strnad (1948), People v. Sorensen (1968), S.v. S. (1981), State ex rel. H. v. P. (1982), R.S. v. R.S. (1983), Brooks v. Fair (1988), K.B. v.N.B. (1991), and Levin v. Levin (1993, superseded by Levin v. Levin, 1994). In only twoearly cases, Doornbos v. Doornbos (1956) and Gursky v. Gursky (1963), the child was de-clared to be illegitimate, although in the latter case the ex-husband was required to paychild support as the court ruled that a contract was implicit in his consent to the procedure.

13. In Interest of R.C. (1989) involved an attempt by a semen donor, J.R., to establishpaternity rights to a child conceived by AID of an unmarried woman, E.C. Following birth,E.C. asked J.R. to sign a parental release. He refused and filed a motion to establish pater-nity. The lower court limited discovery of their agreement and blocked his attempt to estab-lish paternity. The appellate court held that statutes extinguishing parental rights of semendonors in AID do not apply when the donor is known to the recipient and when the recipi-ent is unmarried. The court also considered the parties’ agreement and subsequent conductin determining the relationship of the donor to the child. The agreement between J.R. andE.C. is unclear, but J.R. alleged that he donated his semen with the understanding that he


would be treated as the father of the child. His subsequent conduct, e.g., setting up a trustfund and providing for the baby in his will, reflected this claim.

14. Jhordan C. v. Mary K. (1986) involved an action brought by a single male donor toestablish paternity and visitation rights. The mother and her female friend countered his ac-tion with a motion for joint legal custody and visitation rights for the female friend who didnot live with the mother. It is unclear what was stipulated in the original agreement betweenJhordan C. and Mary K., but Mary K. inseminated herself. Although she also listedJhordan C. as the father on the birth certificate and also permitted him to establish a rela-tionship with the child, Mary K. eventually refused to allow him visitation. The lower courtgranted visitation, but ordered him to reimburse the county for public assistance providedthe child. Mary K. was awarded sole custody and autonomy in decisions concerning thechild’s welfare. The appellate court affirmed the lower court decision, and refused to applya California AID statute that exempts the donor from parental rights and responsibilities,and protects women from paternity claims by the donor. The decision was based on thelack of participation in the insemination by a licensed physician.

15. L.A.L., the mother, sought to prevent blood testing to establish paternity of thesperm donor, D.A.L. until the applicability of AID statutes could be determined.D.A.L. and L.A.L. signed an agreement prior to insemination that the donor would nothave parental rights or responsibilities. Subsequent to the birth, he sought to establishpaternity. The appellate court stopped the paternity tests and remanded to the lowercourt to determine if the AI laws applied. If applicable, the donor would have no rights.

16. Another case, Karin T. v. Michael T. (1985), suggests that when mothers are unableto financially support their AID-conceived children, parental responsibilities may be im-posed on nontraditional parents. In this case, the New York Department of Social Servicesbrought suit against Michael T. to financially support two children conceived through AID.The court agreed that Michael T., actually a female who claimed a male identity, could notavoid parental responsibilities as the defendant had signed an artificial insemination con-sent form that recognized her as the father of the child.

17. Note, however, that lesbians in committed relationships had been previouslyunsuccessful in establishing parental rights. For example, in In re A.D. on behalf of P.D.(1985), a mother sought to have the last name of her AID-conceived child changed to thatof her female friend with whom she had lived for several years, stating that her friend wasin effect a parent, but without legal rights or obligations. The court, acting in loco parentis,denied the petition, deeming that the child’s best interests would not be served. Likewise, inJhordan C. v. Mary K. (1986) mentioned above, Victoria, a friend of Mary’s, was awardedvisitation rights with Mary’s consent, but was denied de facto parental status.

18. Surrogate motherhood statues include Arizona Rev. Stat. Ann. Sec. 25-218, Ar-kansas Code Ann. Secs. 9-10-201 to 203, Florida Stat. Ann. 63.212 $ Secs. 742.13 to742.17, Indiana Code Ann. Secs. 31-8-1-1 through 5, 31-8-2-1 through 3, KentuckyRev. Stat. Ann. Sec. 199.590, Louisiana Stat. Ann. Rev. Sec. 9:2713, Michigan Stat.Ann. Sec. 25.248, Nebraska Rev. Stat. Sec. 25-21.200, Nevada Rev. Stat. Sec. 126.045,New Hampshire Stat. Ann. 168-B:1-32, New York Dom. Rel. Law Sec. 121, North Da-kota Century Code Secs. 14-18-01 through 07, Utah Code Sec. 76-7-204, VirginiaCode Secs. 20-156 through 165, and Washington Code Ann. Secs. 26.26.210 to 270.

19. Violation of this statute typically is considered a misdemeanor. However, stat-ute violation in Michigan is treated as a felony, and in New York, a second violationconstitutes a felony.

20. While statutes in Florida, Nevada, and Virginia prohibit compensation, they al-low the payment of necessary living expenses.


21. The Arkansas statute stipulates that a child born to a surrogate mother is thechild of (a) the biological father and his wife, (b) the biological father only, if he is un-married, or (c) the woman intended to be the mother, if she is unmarried and donor se-men is utilized.

22. Surrogacy was found not to violate state adoption statutes in SurrogateParenting Associates, Inc. v. Commonwealth (1986) and In re Baby Girl L.J. (1986). But,in Doe v. Kelley (1981 certiorari denied, Doe v. Kelly, 1983), In re Baby M. (1988, super-seded by statute as stated in In re Adoption of Children by G.P.B., 1999), and In re Adop-tion of Paul (1990), the courts held that it did violate state statutes.

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