The Laws of Reproductive Technology
Four decades ago, Sophia J. Kleegman and Sherwin A. Kaufman, in Infertility in Women, observed that new reproductive arrangements are greeted initially with shock and must pass through several stages before they are accepted: "Any change in custom or practice in this emotionally charged area has always elicited a response from established custom and law of horrified negation at first; then negation without horror, then slow and gradual curiosity, study, evaluation, and finally a very slow but steady acceptance."
In the 1950s and early 1960s, donor insemination was viewed with such revulsion that bills were introduced in state legislatures to ban the procedure. A proposed Ohio law would have criminalized sperm donation and subjected all of the participants -- the doctor, the donor, and the couple -- to a fine and imprisonment. No such prohibitory laws were passed, and now almost all states have adopted laws that facilitate sperm donation by declaring the consenting husband of the sperm recipient to be the legal father. Yet artificial insemination today is not without controversy. Recent questions have arisen regarding whether sperm should be collected from men in comas or men who have died. Should war widows be allowed to use sperm that their husbands froze before leaving for the front? If they do use it, are the resulting children entitled to death benefits under Social Security and state law?
In the 1980s, egg donation came into fashion. Only a handful of states, though, determine parentage rights and responsibilities. In the other states, the donor might later be able to make a claim for custody of the child. Egg donation also entails safety and health concerns that, combined with much higher payments than sperm donors receive, create ethical challenges.
Frozen embryo disputes continue to confound courts which are without legislative direction in the vast majority of the states. In highly fact-driven decisions, different courts have alternatively enforced existing contracts between couples, ruled in favor of the individual who does not want the embryos used (even though a contract to the contrary exists), or effectively declined to decide, holding that the status quo will remain until the couple comes to a consensus about the disposition of their embryos.
Surrogate motherhood, too, is inadequately regulated. About half the states have adopted surrogacy laws. The statutes differ, however, in how they tip the balance in the event of a dispute over custody between the surrogate and the contracting couple. Florida, New Hampshire, and Virginia have a presumption that the contracting couple are the legal parents, but give the surrogate a certain time period during which to change her mind. In North Dakota, the surrogate and her husband (if she is married) are the parents of the child. Because similar statutory provisions in Utah and Arizona addressing surrogacy arrangements have been declared unconstitutional, the enforceability of the North Dakota law is questionable.
The District of Columbia bans surrogacy contracts. Other states ostensibly ban payments to surrogates, but these laws contain wide exceptions that allow surrogates' expenses to be paid. A court in Massachusetts (applying Rhode Island law) has deemed a $10,000 payment to be coercive and rendered void a surrogacy agreement. Using donor eggs and sperm in a surrogacy arrangement further complicates the situation.
In the 1990s, we confronted another technology that challenges existing conceptions about reproduction. In 1997, Ian Wilmut and Keith Campbell cloned a mammal—a sheep called Dolly. The same technology has now been used to clone dogs, bulls, horses, and monkeys. But should it be applied to humans? If both people in a couple were infertile, they could clone a child from one of them. If both partners were carriers of the gene for a serious recessive disorder, and did not want to risk having a child with that disorder, they could clone one of them. Cloning could also be used to clone a child who died, or an admired relative, or a public figure. It has also been suggested that a person could create a clone to serve as an organ donor. A scientific experiment—the cloning of headless frogs—has demonstrated that this might someday be possible. Upon the 10 year anniversary of the cloning of Dolly, the journal Nature called the cloning of humans for reproductive purposes “inevitable,” and only a handful of states ban the procedure. States continue to grapple with the ethical and legal issues in reproductive technologies, including cloning.
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