Assisted Reproduction and the Law: Disharmony on a Divisive Social Issue

I. INTRODUCTION Thousands of children are born every year in the United States conceived with the use of assisted reproduction technology ("ART"), bringing sought-after babies to couples who would otherwise be childless. Along with this benefit, however, ART raises several difficult legal issues involving parentage, parental responsibilities, and jurisdictional conflicts. In the most "traditional" situation involving ART-where a husband and wife use their own gametes and the wife gestates the child-there may be no issues regarding parentage. In the eyes of the law, the wife is the child's mother and the husband is the child's father. Even this situation, however, has raised thorny legal issues. For example, the couple may choose not to gestate all the embryos conceived from their gametes and instead leave some in frozen storage. Legal issues could arise if the couple later disagrees as to the disposition of those embryos.1 If the couple divorces, one spouse may want to dispose of the embryos, but the other spouse (usually the wife) wants to gestate them and raise the child or children. The courts in this country have uniformly held for the spouse who wants to dispose of the embryos.2 In other cases, even more difficult questions have arisen about parentage and the parties' rights and obligations toward the child. Examples include cases where third parties contribute the eggs or sperm (or both), where a woman agrees to be a surrogate and gestate a child for others to adopt, or where five parties are involved in the conception and birth of a child (the gamete donors, a surrogate, and a coupie that contracts with the surrogate). The volume of litigation regarding all of these issues is steadily increasing. This Essay will review ongoing issues involving artificial insemination and surrogacy. After reviewing the current legal framework surrounding assisted reproduction, the Essay will examine the lack of uniformity surrounding those judicial decisions that address three issues related to assisted reproduction: whether the biological mother's husband or known sperm donor is legally recognized as the father of the child conceived by artificial insemination, whether the biological mother's same-sex partner is legally recognized as the child's second parent, and whether a surrogate is legally recognized as the mother of the child she has gestated. II. CURRENT LEGAL FRAMEWORK American courts have struggled with the issues that arise with ART, often resolving them with a mixture of common law and statutory law developed in a pre-ART age. Because domestic relations law is generally reserved for the states-unless the parties raise federal constitutional issues-a fractured, state-by-state approach to the subject has arisen, thus raising problems of national harmonization. As a result, many ART-related conflicts have arisen among the states, especially in the areas of single-sex couples and of surrogacy. The primary attempts to harmonize various areas of law across the states have come from uniform acts and restatements.3 The uniform act that is most relevant to this topic is the Uniform Parentage Act ("UPA"), section 5, which was first adopted in 1973 and amended in 2000 and 2002 by Articles 7 and 8 (Article 8 concerns gestational agreements). The original section 5 of the 1973 UPA was adopted in about eighteen states but dealt only with artificial insemination of a married woman with donor sperm ("AID"). Its purpose was to ensure that the woman's husband was "treated in law" as the natural father of the AID child and required the husband's written consent to the insemination as well as supervision of the insemination by a licensed physician.4 In addition, section 5 shielded the sperm donor from the legal consequences of paternity; the sperm donor was not treated in law as the natural father. A few states adopted a version of section 5 of the UPA that applied to unmarried women as well as to married ones. …