Academic journal article Texas Journal of Women, Gender, and the Law

A Legal Analysis of Parenthoood by Choice, Not Chance

Academic journal article Texas Journal of Women, Gender, and the Law

A Legal Analysis of Parenthoood by Choice, Not Chance

Article excerpt

I. Introduction

Scientific technology has advanced so much in this century that we now take for granted many things that were once thought of as only science fiction. We now have the luxury, convenience, and responsibility of such things as computers, automobiles, and reliable alternative methods of human reproduction. Just as we only now are realizing the full potential impact of computers and cars on our environment, ourselves, and our progeny, we now must contemplate the legal and social impact and consequences of our new reproductive technologies.

Since the turn of the century, human reproduction has been achieved with increasing success through various means other than coitus. Back in the "good old days," prior to the scientific and social advancement of reproductive technologies, parentage was a relatively easy determination to make, at least with regard to mothers. Now, not only are there multifarious questions to be addressed as to who might be a father, but we have created technology that brings motherhood into question as well. In this article, I address some of the myriad issues surrounding the status of parents and definitions of families created by alternative means of reproduction. I will argue that parentage determinations should be made with greater regard to the needs of children than to the rights of adults.

In this article, I use "alternative insemination"1 to denote the procedure more commonly referred to as "artificial insemination."2 I choose to do so because, upon reflection, it seems to me that nothing "artificial" is used or occurs when reproduction is achieved through means other than coitus.

As the practice of alternative insemination has evolved socially, the problems left in the wake of that evolution have yet to be resolved satisfactorily by our courts. The specific problem I address in this essay is parentage determinations where a pre-conception agreement between a donor and a recipient of genetic material has broken down. I use two recent cases as contexts in which this problem is presented.

In Part II, I give an overview of the practice and place it in the context of my argument. I also lay out the foundations of current law with respect to alternative insemination. In Part III, I discuss cases involving alternative insemination and how they demonstrate the need for reform of the current regulation of determinations of parentage. In Part IV, I detail my arguments for reform and make concrete suggestions for implementing the reforms.

Within this framework, other topics on parentage determinations, including gestational motherhood,3 the possibility of legal same-sex marriage, and the impact of marriage generally, simply cannot be avoided and so are dealt with in turn.

II General Overview and Context

A. The History

The first recorded instance of alternative insemination took place in the 1880s.4 Since then, the number of families affected by alternative insemination has increased steadily, prompting several states5 to adopt some version of the Uniform Parentage Act (Parentage Act).6 However, this model legislation is so limited in scope that the regulation and guidance it offers fall well short of the need it was intended to fill. The cases addressed in Part III clearly demonstrate this inadequacy.

Often, alternative insemination and gestational motherhood are utilized in conjunction. In gestational motherhood arrangements, alternative insemination commonly is employed to achieve fertilization of the gestational mother's egg with the contractual father's sperm. This method of fertilization obviously is preferable between relative strangers, where the intimacy of coitus is not desired or deemed appropriate. Although many of the arguments I make in this essay also apply to other methods of alternative reproduction, I specifically limit my analysis to parentage disputes between a man who donates sperm and the woman who, using that sperm, gives birth to a child whom they both want to parent. …

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