Adoption and Assisted Reproduction: Families under Construction

Abstract

This casebook in Aspen's Elective Series invites teachers and students to explore recent transformations in the fundamental concept of parentage, by examining both traditional doctrines, such as the presumption of legitimacy and adoption, as well as new challenges posed by assisted reproduction. In juxtaposing these topics, this book emphasizes several important themes and tensions, including adoption's roots as an institution purporting to promote child welfare; the contemporary emergence of assisted reproduction as an alternative to adoption for infertile adults; the contested role of the state in family formation and reproductive decisionmaking; the place of gendered notions, such as "mother" and "father," in modern family law; and the way that law and culture construct our understanding of seemingly "natural" relationships.

Throughout, the materials consider the historical underpinnings of current approaches and controversies, while also noting express biases as well as unspoken assumptions based on gender, race, class, and sexuality. The materials are designed to prompt conversations about not only existing law but also law reform and the absence of law on some topics. Two chapters are devoted to matters of jurisdiction, choice of law, and recognition of judgments - because adoption and assisted reproduction have never been exclusively local practices, we live in a famously mobile society, and other states and countries often attract prospective parents who cannot fulfill their objectives at home, especially given regulatory variations within the U.S. and abroad.

Each of the eight chapters contains cases, excerpts, extensive notes and questions, and problems designed to push the analysis beyond the points established by the other materials. In addition, the book incorporates references to relevant works of literature, popular culture, and nonlegal scholarship. These references highlight the strong emotions often evoked by the issues of identity, ancestral roots, and family secrets raised by the topics covered, in turn bringing the legal materials to life and enriching both discussion and understanding.

Keywords: Adoption, Assisted reproduction, Parentage, Family, construction of family, donor insemination, surrogacy, in vitro fertilization, intercountry adoption, reproductive tourism, conflict of laws