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Procreational Autonomy

Values Gone Awry?
  • George P. SmithII

Abstract

A number of commentators have observed that the liberalization of state adoption laws, coupled with the liberation of women,1 or the fundamental constitutional rights of privacy and procreation may demand or indeed establish the right of unmarried women to be artifically inseminated2 or of a single woman to participate in the process of surrogation and become a surrogate mother.3

Keywords

Married Woman Artificial Insemination Unmarried Woman Biological Father Equal Protection 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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Notes

  1. 1.
    See Smith, Artificial Insemination Redivivus, 2 J. L. Med. 113, 128-129 (1981).CrossRefGoogle Scholar
  2. 2.
    Kritchevsky, The Unmarried Woman’s Right to Artificial Insemination: A Call for an Expanded Definition of Family, 4 Harv. Women’s L. J. 1, 26–39 (1981).Google Scholar
  3. Annas, Fathers Anonymous: Beyond the Best Interest of the Sperm Donor, 14 Fam. L. Q. 1 1980.Google Scholar
  4. Shaman, Legal Aspects of Artificial Insemination, 18 J. Fam. L. 330, 344-346 (1980).Google Scholar
  5. 3.
    See Smith, The Perils and Peregrinations of Surrogate Mothers, 1 Int’l J. Med. & L. 325 (1982); Comment, Surrogate Motherhood in California: Legislative Proposals, 18 San Diego L. Rev. 341 (1981).Google Scholar
  6. Brophy, A Surrogate Mother Contract to Bear a Child, 20 J. Fam. L. 263 (1981).Google Scholar
  7. 4.
    See The Artificial Family (R. Snowden & G. Mitchell eds. 1981).Google Scholar
  8. 5.
    See Karst, The Freedom of Intimate Association, 89 Yale L. J. 624 (1980).CrossRefGoogle Scholar
  9. Eichbaum, Sexual Expression, 10 Colum. Human Rights L. Rev. 525 (1978-79).Google Scholar
  10. Wilkinson & White, Constitutional Protection for Personal Life Styles, 62 Cornell L. Rev. 563 (1977).Google Scholar
  11. 6.
    A number of physical difficulties may impede a couple from conceiving by normal sexual intercourse. The husband, for example, may suffer from retrogade ejaculation, physical impotence, malformation of the penis, obesity, or low fertility. Likewise, impediments to conception in the wife may include vaginal tumors or scarring, an abnormal position of the uterus, a very small cervical opening, or obesity. See also Comment, supra note 2, at 916-917 Most commentators agree that homologous insemination poses few legal problems. See Note, Smith, Through a Test Tube Darkly: Artificial Insemination and the Law, 67 Mich. L. Rev. 127 (1968).Google Scholar
  12. 7.
    Artificial insemination by an unrelated and usually unidentified donor is an alternative to childlessness when the husband is absolutely or severely sterile. This may also be a preferred practice when the husband is the carrier of genetic defects or when an abnormal pregnancy is likely because of incompatible Rh blood factors. See G. Smith, Genetics, Ethics and the Law (1981). See Fitzgerald v. Ruckel where it was maintained that because of a physician’s failure to properly genetically screen a donor for A.I.D., the possibility that the donor in fact carried a genetic anomaly which caused the issue subsequently born of the procedures to die of the syndrome, “failure to thrive,” should impose liability. The Supreme Court of Nevada affirmed the lower court’s determination that the physician was not negligent in his procedure and that there is no warranty of merchantability of fitness of a donor’s sperm and, thus, no liability to the donor for a possible genetic defect being passed. Jan. 28, 1982, Sup. Ct. Order Dismissing Appeal, Slip Opinion in Case No. 11433.Google Scholar
  13. See Smith, Great Expectations or Convoluted Realities: Artificial Insemination in Flux, 3 Fam. L. Rev. 37 at 38 (1981).Google Scholar
  14. 8.
    , Holloway, Artificial Insemination: An Examination of the Legal Aspects 43 A.B.A.J. 1089, 1155-1156 (1957), it is used at times to give the husband some hope that he is in fact the natural father of the child. Shaman, supra note 2, at 332. For example, if the husband suffers from poor sperm motility (oligozoopermia), the combination of his sperm with that of a donor may result in the fertilization of the egg with his sperm. See Comment, Therapeutic Impregnation: Prognosis of a Lawyer—Diagnosis of a Legislature, 39 Cin. L. Rev. 201, 297 (1970).Google Scholar
  15. 9.
    Shaman, supra note 2, at 333. See also Fraser, Seven New Ways to Make a Baby, The Weekend Australian, April 7-8, 1984, at 16, col. 1.Google Scholar
  16. 10.
    See Smith, Through a Test Tube Darkly: Artificial Insemination and the Law, 67 Mich. L. Rev. 127, 130 (1968). But see Note, Artificial Insemination versus Adoption, 34 Va. L. Rev 822 (1948). The Catholic Church condemns AI of any kind both within and without marriage. See Address by Pope Pius XII, Fourth World Congress of Catholic Dcotors, Rome, Sept. 29, 1949, reproduced and discussed in G. Kelly, Medico-Moral Problems, 223-30 (1958).CrossRefGoogle Scholar
  17. See also Lombard, Artificial Insemination Civil Law and Ecclesiastical Views, 2 Suffolk L. Rev. 137 (1968).Google Scholar
  18. Weisman, Symposium on Artificial Insemination—The Religious Viewpoints, 7 Syracuse L. Rev. 96, 99-106 (1955-1956). In 1948, the Church of England held—consistent with the followers of the Lutheran faith, the Jewish Orthodox, and the Roman Catholic—that artificial insemination was not only wrong in principle but contrary to Christian beliefs. Today, because of widespread use of AID, the Church of England, as represented by its clergy, is no longer so rigid nor dogmatic in its condemnation of this process. R. Scott, The Body as Property 202 (1981).Google Scholar
  19. 11.
    Kritchevsky, supra note 2, at 1.Google Scholar
  20. 12.
    See infra note 20.Google Scholar
  21. 13.
    152 N.J. Super. 160, 377 A.2d 821 (1977). Initially, AID, even within the marriage, was not greeted with much enthusiasm by the judiciary. Some courts held that AID amounted to adultery, irrespective of the husband’s consent, Orford v. Orford, 58 D.L.R. 251 (Ontario Sup. Ct. 1921); Doornbos v. Doornbos, 23 U.S.L.W. 2308 (unreported decision of Super. Ct., Cook County, Ill., Dec. 13, 1954), appeal dismissed on other grounds, 12 Ill. App. 2d 473, 139 N.E. 2d 844 (1956), and that a child so conceived was illegitimate. Gursky v. Gursky, 39 Misc. 2d 1083, 242 N.Y.S. 2d 406 (Sup. Ct. 1963). The modern trend contradicts these earlier positions. The legal status of the AID child has been legitimized by both courts, In re Adoption of Anonymous, 74 Misc. 2d 99, 345 N. Y. 2d 430 (Sup. Ct. 1973); People v. Sorenson, 58 Cal. 2d 280, 437 P.2d 495, 66 Cal. Rptr. 7 (1958) and legislatures. See infra note 28. Moreover, most jurisdictions do not consider AID adultery since it does not encompass actual sexual intercourse. Shaman, supra note 2, at 334.Google Scholar
  22. 14.
    Smith, A Close Encounter of the First Kind: Artificial Insemination and An Enlightened Judiciary, 17 J. Fam. L. 41 (1978).Google Scholar
  23. 15.
    152 N. J. Super, at 161, 377 A.2d at 822.Google Scholar
  24. 16.
    Id. at 164, 377 A.2d at 825.Google Scholar
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    See Kritchevsky, supra note 2, at 15 (arguing court could have employed an estoppel theory).Google Scholar
  26. 18.
    Turano, Paternity by Proxy, Am. Mercury, 419, 422 (April 1938).Google Scholar
  27. 19.
    Between 6000 to 10,000 children are born each year in the United States as a result of AID. Currie—Cohen, Luttrell, Leigh & Shapiro, Current Practice of Artificial Insemination by Donor in the United States, 300 New Eng. J. Med. 585,588 (1979). Moreover, it is estimated that 250,000 people in the United States have been conceived by artificial insemination. Kritchevsky, supra note 2, at 1, n. 3, citing F. Mims & M. Swenson, Sexuality: A Nursing Perspective 192 (1980). The New England Journal of Medicine article pointed up clearly the very real and serious concern about the potential for incest, for it was found that sperm from one donor had been used to produce 50 children! Id..Google Scholar
  28. 20.
    Alaska Stat. § 20.20.010 (1974); Ark. Stat. Ann. § 61-141(c) (1981); Cal. Civ. Code Ann. § 7005 (West Supp. 1982); Cal. Penal Code Ann. § 270 (West 1970); Colo. Rev. Stat. § 19-6-106 (1978); Conn. Gen. Stat. Ann. §§ 45-69 f-n, 45-152 (West Supp. 1980); Fla. Stat. Ann. § 742.11 (West Supp. 1981); Ga. Code Ann. §§ 74-101.1, 74-9904 (1973); Kan. Stat. Ann. §§ 23-128 to 23-129 (1981), 23-130 (1981); La. Civ. Code Ann. art. 188 (West Supp. 1982); Md. Est. & Trusts Code Ann. § l-205(b) (1974); Mich. Comp. Laws Ann. §§ 333.2824(6), 700.111(2) (1980); Mont. Rev. Codes Ann. § 61-306 (Supp. 1977); Nev. Rev. Stat. § 126 061 (1979); N.Y. Dom. Rel. Law § 73 (McKinney 1977); N.C. Gen. Stat. § 49-A-l (1976); Okla. Stat. Ann. tit. 10 §§ 551-553 (West Supp. 1980); Or. Rev. Stat. §§ 109.239(2), 109.243, 109.247, 677-355 (1979); Tenn. Code Ann. § 53-446 (Supp. 1981); Tex. Fam. Code Ann. tit. § 12.03(a) (Vernon 1975); Va. Code § 64.1-7.1 (1980); Wash. Rev. Code Ann. § 26.26.050 (Supp. 1981-1982); Wis. Stat. Ann. § 767.47(9) (Special Pamphlet 1981), § 891.40(a) (West Supp. 1981-1982); Wyo. Stat. § 14-2-103 (1980).Google Scholar
  29. 21.
    For an analysis of the common elements found in the majority of these statutes, see Comment, Artificial Human Reproduction: Legal Problems Presented by the Test Tube Baby, 20 Emory L.J. 1045, 1065-1071 (1979).Google Scholar
  30. See Smith, For Unto Us is Born a Child—Legally, 56 A.B.A.J. 143 (1970).Google Scholar
  31. Schuyler, The New Biology and the Rule Against Perpetuities, 15 U.C.L.A. L. Rev. 420 (1968).Google Scholar
  32. See generally Sappideen, Life After Death—Sperm Banks, Wills and Perpetuities, 53 Australian L. J. 311 June 1979.Google Scholar
  33. 22.
    Or. Rev. Stat. § 677.365 (1979) (emphasis added). One commentator has recently suggested that the statutes of California, Colorado, Washington, and Wyoming, which follow the language of the Uniform Parentage Act but omit the word “married” from one of its provisions, may arguably legitimize the practice for unmarried women. See Kritchevsky, supra note 2, at 18. In New South Wales, under the Artificial Conception Bill of 1984, given Royal Assent March 5, 1984, a child born as a result of artificial insemination by donor (AID) accomplished with the husband’s consent is deemed to be the child of the husband. A child born from in vitro fertilization, where genetic material is provided by the husband and wife, or where semen is provided by a donor, is deemed the child of the husband and wife. The same principles are also applied to de facto relationships. Yet, the new law does not cover children born as a result of an in vitro procedure using donated eggs. The Equality of Status Amendment Bill, 1984, with respect to certain presumptions arising under that Act, was made cognate with The Artificial Conception Act of 1984.Google Scholar
  34. 23.
    One commentator seems to have interpreted the statute as limiting the practice to married women. See Shaman, supra note 2, at 344-345.Google Scholar
  35. 24.
    See generally Reitman v. Mulkey, 387 U.S. 369 (1967).Google Scholar
  36. 25.
    N. Keane, D. Breo, The Surrogate Mother (1981).Google Scholar
  37. 26.
    R. Blank, The Political Implications of Human Genetic Technology 68 (1981); G. Smith, Genetics, Ethics and the Law 110, 124, 125 (1981).Google Scholar
  38. See also Sappideen, the Surrogate Mother—A Growing Problem, 6 U. New S. Wales L.J. 79 (1983); Rassaby, Surrogate Motherhood: The Position and Problems of Substitutes in Test-Tube Babies: A Guide to Moral Questions, Present Techniquest and Future Possibilities, at 97 (W. Walters & P. Singer eds. 1982). The Senior Judge of The Family Court of Australia, Mr. Justice Asche, has summed up accurately two of the very real dangers of surrogation: duress and blackmail; duress, because the surrogate mother could very well decide to assume this status because of desperate poverty; and blackmail, because it is possible that a surrogate could endeavor to increase the original price for her services by threatening to keep the child upon its birth. Asche, Ethical Implications in the Use of Donor Sperm, Eggs and Embryos in The Treatment of Infertility, 57 [Australian] Law Institute]., 716-719 (1983).Google Scholar
  39. 27.
    Keane, Legal Problems of Surrogate Motherhood, 1980 S. Ill U.L.J. 147, 152. The theological response to this phenomenon is, as with artificial insemination, to regard it as an essentially adulterous act, since it is considered to be an “intrusion of a third party into the psycho-physical union of husband and wife.” Kavanagh, Theologians Hit “Surrogate Mother” Business, The Catholic Standard, April 8, 1982, at 33, cols. 1-4.Google Scholar
  40. 28.
    See, e.g., Ky. Rev. Stat. § 199.590(2) (1980); Mich. Comp. Laws Ann. § 710.54 (Supp. 1983); N.J. Stat. Ann. § 9:3-54(a) (West Supp. 1983). In England, a special government inquiry into the complexities of the New Biology, the Warnock Commission, proposed an absolute ban on surrogate mothers. Time, Aug. 6, 1984, at 50. In Australia, The Report of the Committee to Consider the Social, Ethical and Legal Issues Arising from In Vitro Fertilization submitted in August, 1984, recommended “that surrogacy arrangements, shall in no circumstances be made at present as part of an IUF programme” in the State of Victoria. Report on the Disposition of Embryos Produced by in Vitro Fertilization, Sec. 4.17 (Aug. 1984). But see infra note 73, Chap. 11, 1988 Michigan Surrogate Parenting Act.Google Scholar
  41. 29.
    See, e.g., Adoption Hotline Inc. v. State of Florida 385 So.2d 682 (C.D.C.A. Fla. 1980); Comment, Independent Adoptions: Is the Black and White Beginning to Appear in the Controversy over Gray Market Allocations? 18 Duq. L. Rev. 629 (1980); Comment, Moppets on the Market: The Problem of Unregulated Adoptions, 59 Yale L. J. 715 (1950).Google Scholar
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    A. Corbin, On Contracts § 1792 (1962).Google Scholar
  43. 31.
    Erickson, Contracts to Bear A Child, in 1 Ethical, Legal and Social Challenges to a Brave New World 98, 100 (G. Smith ed. 1982).Google Scholar
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    Krucoff, Private Lives: The New Surrogate, Wash. Post, Sept. 24, 1980, at B5, col. 2. See generally Annas, Surrogate Embryo Transfer, Hastings Center Rep. 25 (June 1984).Google Scholar
  45. 33.
    Unif. Parentage Act of 1973, Sec 5(b) in Unif. Laws Ann., Matrimonial, Family and Health Laws at 587 (1979). The Act, itself, has been adopted in but eight jurisdictions. Id..Google Scholar
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    Annas, Contracts to Bear a Child: Compassion and Commercialism, Hastings Center Rep. 23, 24 (April 1981).Google Scholar
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    Supra, note 31; Harris, Stand-in Mother—Maryland Woman to Bear Child for Couple, Wash. Post, Feb. 11, 1980, at 1, col. 3.Google Scholar
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    Id. See generally Comment, Constitutional Limitations on State Intervention in Prenatal Care, 62 Va. L. Rev. 1051 (1981).Google Scholar
  52. 39.
    See supra note 7 for an analogous AID situation and judicial holding.Google Scholar
  53. 40.
    The only recorded “mind change” case covered the surrogate’s desire to keep her biological child—with no issue of support being raised. Time, June 22, 1981 at 71; Infra, note 41.Google Scholar
  54. See generally Curtis, The Psychological Parent Doctrine in Custody Disputes Between Foster Parents and Biological Parents, 16 Colum. J. L. & Soc. Probs. 149 (1980).Google Scholar
  55. 41.
    The first known incident of a surrogate mother attempting to rescind her contract was decided by a Superior Court Judge in Los Angeles, California. The plaintiff and his wife were unable to have a family and therefore sought a California widow and mother of three children to be put under contract to be artificially inseminated by plaintiff. Although not paid for her services, her medical expenses were covered. During the pregnancy, the surrogate changed her mind and expressed her intent to keep the fetus when born. Plaintiff then sued for custody but before trial requested the presiding judge to withdraw his suit. Claiming “extraordinary publicity” of the fact that his wife was a transsexual would make it difficult for his son to “lead a normal life,” the plaintiff capitulated. The infant was given his birth mother’s surname, but the plaintiff was listed on the birth certificate as the father and was granted visitation rights. The plaintiff’s attorney opined that plaintiff might well wish to reopen the case on the issue of visitation rights. The presiding judge of the court stated his belief that surrogates should always be allowed to reconsider and change their minds regarding such contracts. Wash. Post, April 7, 1981, at A7, cols. 1-2; Wash. Post, June 5, 1981, at A6, col. 1; Time, June 22, 1981, at 71; Mathews, Adoptive Parents Fight Surrogate Mother for Baby, Wash. Post, Mar. 23, 1981, at 7A, col. 6.Google Scholar
  56. 42.
    Time, June 5, 1978, at 59. What if a biologic mother decides to have an abortion owing to the discovery of fetal abnormality? Would any action be available to the contracting parties to prevent such a decision by the surrogate? Paton v. Trustees of BPAS [1978] 2 All E. R. 987 has, by implication, answered to this conundrum. There it was held that a man could not prevent his wife from having an abortion. It could thus be argued that the biological mother has as much standing vis-a-vis the surrogate mother as the father vis-a-vis the mother when considering undergoing an abortion. Brown, Legal Implications of The New Reproductive Technology in Making Babies: The Test Tube and Christian Ethics 61, 67 (A. Nichols & T. Hogan eds. 1984).Google Scholar
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    Doe et al v. Kelley, State Attorney General, Jan. 1980 Reporter on Human Reproduction and the Law, II-B-15-II-B-22.Google Scholar
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    Wash. Post, April 24, 1981 at A12, col. 1. The very first recorded incident of a surrogate motherhood birth took place in San Francisco, California, on September 6, 1976. N. Keane & D. Breo, The Surrogate Mother 33 (1981).Google Scholar
  65. 51.
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    Ky. Rev. Stats. § 199.590 (1977 Rpl.). In addition to his advisory opinion, 80-18, the Attorney General maintained an action to enjoin Surrogate Planning Associates, Inc. from making any further surrogate mother arrangements in the state. Annas, Contracts to Bear a Child; Compassion or Commercialism, Hastings Center Rep. 23, 25 (April 1981). Ms. Kane received less than $10,000 for her services. The issue born of this arrangement thus became the first born through the work of Surrogate Parenting Associates (SPA)—an organization founded in January, 1980, in Louisville, Kentucky, whose function is to be a matchmaker—matching, as such, infertile couples with fertile women willing to bear babies. SPA estimates the average cost involved in a total surrogate program to be anywhere from $13,000 to $20,000, which covers medical and hospital expenses and the fees of SPA. Krucoff, Private Lives: The New Surrogate, Wash. Post, Sept. 24, 1980 at B5, col. 2. Presumably, a monetary gift or other personalty or real property could be made to a surrogate, however, for her undertaking and not be voided.Google Scholar
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    Excepts from Decision by New Jersey Supreme Court in the Baby M Case, N.Y. Times, Feb. 4, 1988, at B6, col. 1. In re Baby M, 14 Yam. L. Rep. (BNA) 2007 (1988) See generally Johnson, The Baby M Decision: Specific Performance of a Contract for Specially Manufactured Goods, S. Ill. U. L. Rev. 1339 (1987).Google Scholar
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Copyright information

© Springer Science+Business Media New York 1989

Authors and Affiliations

  • George P. SmithII
    • 1
  1. 1.The Catholic University of America School of LawUSA

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