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The Laws of Reproductive Technology
Three 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 horror 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 at least 35 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.
In the 1980s, egg donation came into fashion.
Only 5 states, though, regulate the procedure. In the other
states, the donor might later be able to make a claim for custody
of the child.
Surrogate motherhood, too, is inadequately regulated.
Twenty-three states have adopted surrogacy laws. The statutes
differ, however, in how they tip the balance in the event of a
dispute over custody. 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 contrast, in North Dakota and Utah, the surrogate
and her husband are the legal parents of the child.
The District of Columbia and Arizona ban surrogacy
contracts. Eight more states -- Florida, Michigan, Nevada,
New Hampshire, New York, Virginia, Washington, and West Virginia
-- ostensibly ban payments to surrogates, but these laws contain
wide exceptions that allow surrogates' expenses to be paid.
Virginia and New Hampshire provide an extensive
regulatory structure for unpaid surrogacy contracts, which includes
medical and psychological screening and a requirement that the
contract be submitted to a judge for approval in advance of the
pregnancy. In addition, under these laws there must be a
home study of the intended parents, as well as of the surrogate
and her husband to determine all four parties' suitability for
parenthood, thus attempting to assure the child a good home, no
matter which family he or she ultimately ends up with.
In the 1990s we have confronted another technology
that challenges existing conceptions about reproduction.
In 1997, Ian Wilmut and Keith Campbell cloned a mammal, a sheep
called Dolly. Almost immediately, examples were given regarding
the application of this technology to humans. If both partners
were infertile, they could clone a child from one of them.
Similarly, 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. Other variations
on parenting through cloning were suggested -- a couple could
clone their 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 more recent scientific
experiment -- cloning headless frogs -- has been suggested as
a way to facilitate this. Only nine states -- Arkansas,
California, Indiana, Iowa, Louisiana, Michigan, North Dakota,
Rhode Island, and Virginia -- ban human cloning. In addition,
Missouri prohibits the use of state funds for research to clone
a human.
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