Thinking About the Law of Assisted Reproductive Technology
Charles P. Kindregan, Jr.
Suffolk University Law School
Wisconsin Journal of Family Law, Vol. 27, p. 123, 2007
Suffolk University Law School Research Paper No. 08-01
This article surveys some of the difficult unresolved legal issues created by the increased use of assisted reproduction to procreate children. Some aspects of this technology, such as intrauterine insemination, have been widely used for a few decades by married couples and has gained legal recognition in statutory and decisional law. However, the widespread use of intrauterine insemination by unmarried opposite sex couples and same sex couples is largely unregulated and legally problematical, creating problems for courts throughout the country which have struggled with issues relating to parental rights, custody, visitation and child support in the absence of legislative guidance.
Even beyond the use of intrauterine insemination, other newer reproductive technologies such as in vitro fertilization, embryo cryopreservation and transfer, gestational surrogacy and posthumous reproduction have created even more potential and actual legal issues about which the legislatures have for the most part remained silent. Such technologies have raised questions about parental status, determination of maternity, genetic abnormalities, multiple births, status of gamete or embryo donors, child support obligations, the role of adoption in application of these technologies, medical malpractice, government regulation, health insurance, divorce disputes over disposition of cryopreserved embryos, the social security status of children conceived posthumously by assisted reproduction and numerous other matters.
The article examines the impact of these technologies on the concept of the family. The right to procreate is a basic fact in American family law doctrine, but the pro-creative choice in the context of families which have not or are only slowly gaining legal recognition such as same sex marriages or civil unions, and non marital families, has become controversial in disputes over marriage. For example, challenges to a state's choice to limit marriage to heterosexual couples have almost always raised the issue about the purpose of marriage, and because of the widespread use of assisted reproduction among same sex couples to procreate the issue has squarely been raised as to whether the procreation argument any longer has any validity in a state's bar to same sex marriage. The article examines the different kinds of family units employing collaborative reproduction today, and some of the court responses to this reality. The article also surveys the potential application of the 2000 Uniform Parentage Act (as amended in 2002), which while not yet widely adopted, does address some of these issues raised by assisted reproduction.
This version of the article is a submission draft and does not reflect any law review edits.
Number of Pages in PDF File: 13
Date posted: December 10, 2007