Who's Your Daddy?: A Legitimate Question Given Louisiana's Lack of Legislation Governing Assisted Reproductive Technology

This article addresses the current reality that assisted reproductive technology (ART) allows numerous people to be involved in the creation of a human life: egg donor, sperm donor(s), a surrogate mother and her husband or partner, an intended mother and an intended father, or two intended mothers or fathers, in the case of a lesbian or gay couple. This multiplication of child creators could be problematic, because, as one author described it, the participation of so many people in the creative process opens up “a Rubik’s cube of parental possibilities.”Critics argue that what originated as a method for infertile couples to fulfill the lifelong dream of having a child has morphed into a commercial world, with sperm, eggs, and surrogate carriers becoming little more than costly products for desperate couples unable, for various reasons, to have a baby of their own. Just as disturbing are the legal implications of ART. Who are the “parents” of a child born under these circumstances? What rights, if any, does a donor have to develop a relationship with that child? What obligations, if any, does a donor owe to that child? Most importantly, what rights does the child have? Does such a child have a right to know the identity of his or her biological parents and to demand support from them? Does such a child and his or her intended parent(s) have a right to be protected from unwanted interference from donors, who might seek to claim parental rights?As medical technology has advanced into phases that most lay persons cannot fathom, the laws of most states and foreign countries have failed to anticipate and handle the ramifications that accompany it. To be sure, some states have made at least an effort to address those ramifications. Many states have adopted the Uniform Parentage Act, which terminates a donor’s rights to a child. Others have amended the Uniform Parentage Act, while retaining its basic principles. One state uses legislation whereby a donor’s intent is determinative of his parenthood. A few incorporate a contractual scheme that allows a donor to ensure paternity by agreement. However, these efforts at addressing the problem all leave something to be desired, as ART has yielded a confused and underdeveloped area of law.As for Louisiana, she stands among those jurisdictions that still have no legislation to handle the issues of parenthood that arise when a woman employs artificial insemination or in vitro fertilization to create an embryo from a gamete of an intended parent and a gamete of a donor. Louisiana does have legislation that sets forth a procedure for the adoption of a fertilized embryo created by in vitro fertilization patients who choose not to implant it. This law is of no help, however, to donors of sperm and egg, recipient parents, and children born of donor artificial insemination or donor in vitro fertilization. This means Louisiana courts have no legislative guidance when it comes to balancing the competing interests of donors of sperm and eggs against those of the prospective parents, while keeping in mind the most important interests of all, those of the child resulting from such innovative technology.In the ever-changing world of baby-making, the failure of the Louisiana Legislature to provide such guidance could be detrimental to all persons involved. That is so because without such guidance, Louisiana courts may well have great difficulty equitably handling the multitude of various claims relating to ART that could be put before them to decide. Judges will have no choice but to resolve controversies based on their own sense of equity and morality. This, in turn, will lead to inconsistency and confusion. The point of this comment is two-fold -- first, to demonstrate that Louisiana desperately needs to enact legislation governing the sensitive legal issues to which the use of ART gives rise, in particular, issues relating to the filiation of children conceived through ART; second, to suggest what form that legislation should take. With these objectives in mind, the comment has been organized as follows. Part II explores the world of contemporary ART. Specifically, this section reviews (1) the scientific processes of artificial insemination and in vitro fertilization; (2) the psychological impact that the use of these processes have on the sperm and egg donors, the intended parents, and the children who are produced; and (3) the legal implications that may arise from the use of these two procedures. Part III examines the legal fiascos that will occur if Louisiana’s current law of filiation is applied to resolve the novel and complex issues of the paternity that will arise from the unrestricted use of ART. This examination will entail, first, an explication of the current law of filiation and, second, the sometimes uncertain, sometimes bizarre results to which that law, as applied to children of ART, will lead. Part IV reveals a comparative study of the ART legislation that has been adopted in various states within the United States (Section A) and in various foreign countries (Section B). The purpose of this study is to identify appropriate models to which Louisiana legislators may look in fashioning ART legislation here. Since those jurisdictions have already researched and implemented ART legislation, Louisiana lawmakers could possibly benefit from their experience and, in doing so, save themselves considerable time and effort. Part V proposes a model for Louisiana to consider implementing, based on the positive aspects of the ART legislation of other states and foreign jurisdictions identified in the comparative study.