The Technological Family: What's New and What's Not

Family Law Quarterly

Volumn 33, Issue 3, 1999, Pages 691-704

  Garrison, Marsha ^a  

^a NONE

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EID: 0033272090     PISSN: 0014729X     EISSN: None     Source Type: Journal    
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References (57)

1. CANADA ROYAL COMMISSION ON NEW REPRODUCTIVE TECHNOLOGIES, 1 PROCEED WITH CARE: FINAL REPORT OF THE ROYAL COMMISSION ON NEW REPRODUCTIVE TECHNOLOGIES 41 (1993) [hereinafter PROCEED WITH CARE].
2. Ruth Deech, Infertility and Ethics, 9 CHILD & FAM. L.Q. 337, 338 (1997).
3. U.S. CENTERS FOR DISEASE CONTROL, 1996 NATIONAL ART FERTILITY REPORT nat. summ., § 1 (1999), (visited July 14, 1999) (based on data from 300 U.S. fertility clinics representing "almost all clinics in the United States" employing IVF technology; donated egg births were calculated based on live births per cycle figures).
4. See Kenneth D. Alpern, Genetic Puzzles and Stork Stories: On the Meaning and Significance of Having Children, in THE ETHICS OF REPRODUCTIVE TECHNOLOGY 158 (Kenneth D. Alpern ed. 1992) (noting that, for most people, "adoption is a second choice" due both to the lack of "genetically based affinities of temperament, interest, or understanding . . . a genetically based physical resemblance to the parents . . . [and because] an adopted child, it is generally felt, is just not, in the fullest sense, one's own; one is not a real parent of the child.").
5. See also LYNDA B. FENWICK, PRIVATE CHOICES, PUBLIC CONSEQUENCES: REPRODUCTIVE TECHNOLOGY AND THE NEW ETHICS OF CONCEPTION, PREGNANCY, AND FAMILY 217-18 (1998); LAWRENCE J. KAPLAN & ROSEMARIE TONG, CONTROLLING OUR REPRODUCTIVE DESTINY: A TECHNOLOGICAL AND PHILOSOPHICAL PERSPECTIVE 242 (1994).
6. See also LYNDA B. FENWICK, PRIVATE CHOICES, PUBLIC CONSEQUENCES: REPRODUCTIVE TECHNOLOGY AND THE NEW ETHICS OF CONCEPTION, PREGNANCY, AND FAMILY 217-18 (1998); LAWRENCE J. KAPLAN & ROSEMARIE TONG, CONTROLLING OUR REPRODUCTIVE DESTINY: A TECHNOLOGICAL AND PHILOSOPHICAL PERSPECTIVE 242 (1994).
7. Gabrielle Wolf, Frustrating Sperm: Regulation of AID in Victoria Under the Infertility Treatment Act 1995, 10 AUST. J. FAM. L. 1, 28 n. 116 (1996) (quoting director of California sperm bank).
8. See also Emma Cook, So You Want a Baby But There's No Sign of Mr. Right, THE INDEPENDENT, Nov. 16, 1997, at 5 (quoting medical estimates that 300 single British women per year - 10 times the number five years earlier - were becoming parents through AID); Janet Kinosian, And Baby Makes Two: These Days, More Thirty-Something Women Are Opting For Single Parenthood, NEWSDAY, May 11, 1999 (providing anecdotal accounts of AID use by single women). There are no recent national data on births achieved using artificial insemination (AI), but a survey conducted by the U.S. Congress Office of Technology Assessment revealed that, during 1986-87, there were approximately 65,000 AI births, 30,000 of which involved donor semen (AID). At the time of the survey, 90% of AID users were married women who sought AID because of their husbands' infertility. U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, ARTIFICIAL INSEMINATION PRACTICE IN THE UNITED STATES: SUMMARY OF A 1987 SURVEY 3 (1988). But the advent of intracytoplasmic sperm injection (ICSI), involving the in vitro microinjection of a single spermatid into an ovum, has dramatically altered the treatment of male infertility. A large portion of couples who formerly resorted to AID now conceive a child biologically related to husband and wife using IVF and ICSI; thus, in 1996, ICSI was used in 30% of UI.S. IVF cycles. 1996 ART REPORT, supra note 3.
9. See also Emma Cook, So You Want a Baby But There's No Sign of Mr. Right, THE INDEPENDENT, Nov. 16, 1997, at 5; Janet Kinosian, And Baby Makes Two: These Days, More Thirty-Something Women Are Opting For Single Parenthood, NEWSDAY, May 11, 1999. There are no recent national data on births achieved using artificial insemination (AI), but a survey conducted by the U.S. Congress Office of Technology Assessment revealed that, during 1986-87, there were approximately 65,000 AI births, 30,000 of which involved donor semen (AID). At the time of the survey, 90% of AID users were married women who sought AID because of their husbands' infertility. U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, ARTIFICIAL INSEMINATION PRACTICE IN THE UNITED STATES: SUMMARY OF A 1987 SURVEY 3 (1988). But the advent of intracytoplasmic sperm injection (ICSI), involving the in vitro microinjection of a single spermatid into an ovum, has dramatically altered the treatment of male infertility. A large portion of couples who formerly resorted to AID now conceive a child biologically related to husband and wife using IVF and ICSI; thus, in 1996, ICSI was used in 30% of UI.S. IVF cycles. 1996 ART REPORT, supra note 3.
10. Compare U.S. DEP'T OF COMMERCE, BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES: 1998 80, tbl. 100 (1998) (1990s data), with U.S. DEP'T OF COMMERCE, BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES: 1996 79, tbl. 98 (1997) (1970s data).
11. Experts estimate that no more than a quarter of nonmarital children are born to cohabiting couples. See Larry L. Bumpass & J.A. Sweet, Children's Experience in Single-Parent Families: Implications of Cohabitation and Marital Transitions, 21 FAM. PLANNING PERSPECTIVES 256 (1990); Andrew J. Cherlin, The Weakening Link Between Marriage and the Care of Children, 20 FAM. PLANNING PERSPECTIVES 302, 303 (1988). Nor do the fathers of nonmarital children typically play a responsible role in child rearing; less than 30% of them are even obligated to pay child support. U.S. DEP'T OF COMMERCE, BUREAU OF THE CENSUS, CHILD SUPPORT FOR CUSTODIAL MOTHERS AND FATHERS: 1991 6-7, 12 tbl. F (Current Population Reports No. P60-187, 1995) (reporting that 56% of custodial mothers, 41% of custodial fathers, and 27% of never- married mothers had been awarded child support in 1991 and that 34.0% of custodial parents without support orders reported simply that they "did not pursue a child support award," 17.5% that they "did not want child support, 16.5% that they believed "other parent [was] unable to pay, and 17.5% that they were "unable to locate [the] other parent").
12. Experts estimate that no more than a quarter of nonmarital children are born to cohabiting couples. See Larry L. Bumpass & J.A. Sweet, Children's Experience in Single-Parent Families: Implications of Cohabitation and Marital Transitions, 21 FAM. PLANNING PERSPECTIVES 256 (1990); Andrew J. Cherlin, The Weakening Link Between Marriage and the Care of Children, 20 FAM. PLANNING PERSPECTIVES 302, 303 (1988). Nor do the fathers of nonmarital children typically play a responsible role in child rearing; less than 30% of them are even obligated to pay child support. U.S. DEP'T OF COMMERCE, BUREAU OF THE CENSUS, CHILD SUPPORT FOR CUSTODIAL MOTHERS AND FATHERS: 1991 6-7, 12 tbl. F (Current Population Reports No. P60-187, 1995) (reporting that 56% of custodial mothers, 41% of custodial fathers, and 27% of never-married mothers had been awarded child support in 1991 and that 34.0% of custodial parents without support orders reported simply that they "did not pursue a child support award," 17.5% that they "did not want child support, 16.5% that they believed "other parent [was] unable to pay, and 17.5% that they were "unable to locate [the] other parent").
13. Experts variously estimate the rate of nonmarital paternity among births to married women. See Serge Bredart & Robert M. French, Do Babies Resemble Their Fathers More Than Their Mothers? A Failure to Replicate Christenfeld and Hill 1995, 20 EVOLUTION & HUMAN BEHAVIOR 129, 130-31 (1998) (summarizing research reports and noting estimates of extramarital paternity of 6% to 30% in southern England and 10% in rural Michigan); S. MacIntyre & A. Sooman, Non-Paternity and Prenatal Genetic Screening, 338 LANCET 869 (1991) (reporting that the proportion of U.S. children born to married women who were not fathered by the women's husbands is probably from 1% to 5%, but may be as high as 10%).
14. See AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS § 3.02A, comment d. (Council Draft No. 5, Oct. 6, 1998) (citing cases and noting that "[m]ost states find husbands estopped from challenging paternity under certain facts").
15. See also Jean A. Goldstein, Note, Children Born of the Marriage - Res Judicata Effect on Later Support Proceedings, 45 Mo. L. REV. 307, 308 n. 5 (1980).
16. These stresses are significant. While the evidence suggests that most married AID users plan to maintain secrecy (see J.N. Robinson et al., Attitudes of Donors and Recipients to Gamete Donation, 6 HUMAN REPRODUCTION 307 (1991); D.M. Berger et al., Psychological Patterns in Donor Insemination Couples, 31 CAN. J. PSYCHIAT. 818 (1986)), the Canadian Royal Commission on New Reproductive Technologies concluded that "secrecy [about AID] places great strains on families." Some fathers interviewed said that they felt "fraudulent," while some mothers indicated that they felt they were "living a lie." Adults born through DI who were interviewed by Commission researchers also reported that "the decision to keep DI a secret was very damaging - they felt deceived and said they had always sensed that something was 'wrong' in the family. Some told the Commission that they found out about the method of conception at a time of family crisis, such as divorce or death in the family - a time when secrets are difficult to keep." PROCEED WITH CARE, supra note 1, at 464-65. Men married to women who have borne children through AID also tend to support mandatory counseling before AID. See C.L. Wendland et al., Donor Insemination - A Comparison of Lesbian Couples, Heterosexual Couples and Single Women, 65 FERTILITY & STERILITY 764 (1996).
17. These stresses are significant. While the evidence suggests that most married AID users plan to maintain secrecy (see J.N. Robinson et al., Attitudes of Donors and Recipients to Gamete Donation, 6 HUMAN REPRODUCTION 307 (1991); D.M. Berger et al., Psychological Patterns in Donor Insemination Couples, 31 CAN. J. PSYCHIAT. 818 (1986)), the Canadian Royal Commission on New Reproductive Technologies concluded that "secrecy [about AID] places great strains on families." Some fathers interviewed said that they felt "fraudulent," while some mothers indicated that they felt they were "living a lie." Adults born through DI who were interviewed by Commission researchers also reported that "the decision to keep DI a secret was very damaging - they felt deceived and said they had always sensed that something was 'wrong' in the family. Some told the Commission that they found out about the method of conception at a time of family crisis, such as divorce or death in the family - a time when secrets are difficult to keep." PROCEED WITH CARE, supra note 1, at 464-65. Men married to women who have borne children through AID also tend to support mandatory counseling before AID. See C.L. Wendland et al., Donor Insemination - A Comparison of Lesbian Couples, Heterosexual Couples and Single Women, 65 FERTILITY & STERILITY 764 (1996).
18. These stresses are significant. While the evidence suggests that most married AID users plan to maintain secrecy (see J.N. Robinson et al., Attitudes of Donors and Recipients to Gamete Donation, 6 HUMAN REPRODUCTION 307 (1991); D.M. Berger et al., Psychological Patterns in Donor Insemination Couples, 31 CAN. J. PSYCHIAT. 818 (1986)), the Canadian Royal Commission on New Reproductive Technologies concluded that "secrecy [about AID] places great strains on families." Some fathers interviewed said that they felt "fraudulent," while some mothers indicated that they felt they were "living a lie." Adults born through DI who were interviewed by Commission researchers also reported that "the decision to keep DI a secret was very damaging - they felt deceived and said they had always sensed that something was 'wrong' in the family. Some told the Commission that they found out about the method of conception at a time of family crisis, such as divorce or death in the family - a time when secrets are difficult to keep." PROCEED WITH CARE, supra note 1, at 464-65. Men married to women who have borne children through AID also tend to support mandatory counseling before AID. See C.L. Wendland et al., Donor Insemination - A Comparison of Lesbian Couples, Heterosexual Couples and Single Women, 65 FERTILITY & STERILITY 764 (1996).
19. Adopted and technologically conceived children have identical needs for non-identifying health information about their biological families. Children from both groups may also want information about the identity of their biological progenitors. Some experts have suggested that technologically conceived children will want such identifying information less frequently - adopted children may be more inclined to feel rejected by their biological parents and thus want explanatory information - but we know that some technologically conceived children do want such information, and want it badly. See Margaret R. Brown, Whose Eyes Are These, Whose Nose?, NEWSWEEK, Mar. 7, 1994, at 12; Peggy Orenstein, Are You My Father?, N.Y. TIMES, June 18, 1995, § 6 (magazine); Karen M. Thomas, The Donor Connection: Families Are Chipping Away at the Taboos and Secrecy that Once Surrounded Artificial Insemination, DALLAS MORNING NEWS, Nov. 23, 1997, at IF. On the other hand, only a small fraction of adoptees ultimately seek the identity of their biological parents. See William Feigelman & Arnold Silverman, Adoptive Parents, Adoptees, and the Sealed Record Controversy, 67 SOC. CASEWORK 219 (1986) (finding that 15% of children of surveyed adoptive parents had asked to see their adoption records and 4% had contacted birth families); John P. Triseliotis, Obtaining Birth Certificates, in ADOPTION: ESSAYS IN SOCIAL POLICY, LAW, AND SOCIOLOGY 34 (Philip Bean ed., 1984) (based on adoptees' applications for access to birth records in Great Britain, estimating that 21% of all British adoptees might apply for birth records during their adult years).
20. Adopted and technologically conceived children have identical needs for non- identifying health information about their biological families. Children from both groups may also want information about the identity of their biological progenitors. Some experts have suggested that technologically conceived children will want such identifying information less frequently - adopted children may be more inclined to feel rejected by their biological parents and thus want explanatory information - but we know that some technologically conceived children do want such information, and want it badly. See Margaret R. Brown, Whose Eyes Are These, Whose Nose?, NEWSWEEK, Mar. 7, 1994, at 12; Peggy Orenstein, Are You My Father?, N.Y. TIMES, June 18, 1995, § 6 (magazine); Karen M. Thomas, The Donor Connection: Families Are Chipping Away at the Taboos and Secrecy that Once Surrounded Artificial Insemination, DALLAS MORNING NEWS, Nov. 23, 1997, at IF. On the other hand, only a small fraction of adoptees ultimately seek the identity of their biological parents. See William Feigelman & Arnold Silverman, Adoptive Parents, Adoptees, and the Sealed Record Controversy, 67 SOC. CASEWORK 219 (1986) (finding that 15% of children of surveyed adoptive parents had asked to see their adoption records and 4% had contacted birth families); John P. Triseliotis, Obtaining Birth Certificates, in ADOPTION: ESSAYS IN SOCIAL POLICY, LAW, AND SOCIOLOGY 34 (Philip Bean ed., 1984) (based on adoptees' applications for access to birth records in Great Britain, estimating that 21% of all British adoptees might apply for birth records during their adult years).
21. Adopted and technologically conceived children have identical needs for non- identifying health information about their biological families. Children from both groups may also want information about the identity of their biological progenitors. Some experts have suggested that technologically conceived children will want such identifying information less frequently - adopted children may be more inclined to feel rejected by their biological parents and thus want explanatory information - but we know that some technologically conceived children do want such information, and want it badly. See Margaret R. Brown, Whose Eyes Are These, Whose Nose?, NEWSWEEK, Mar. 7, 1994, at 12; Peggy Orenstein, Are You My Father?, N.Y. TIMES, June 18, 1995, § 6 (magazine); Karen M. Thomas, The Donor Connection: Families Are Chipping Away at the Taboos and Secrecy that Once Surrounded Artificial Insemination, DALLAS MORNING NEWS, Nov. 23, 1997, at IF. On the other hand, only a small fraction of adoptees ultimately seek the identity of their biological parents. See William Feigelman & Arnold Silverman, Adoptive Parents, Adoptees, and the Sealed Record Controversy, 67 SOC. CASEWORK 219 (1986) (finding that 15% of children of surveyed adoptive parents had asked to see their adoption records and 4% had contacted birth families); John P. Triseliotis, Obtaining Birth Certificates, in ADOPTION: ESSAYS IN SOCIAL POLICY, LAW, AND SOCIOLOGY 34 (Philip Bean ed., 1984) (based on adoptees' applications for access to birth records in Great Britain, estimating that 21% of all British adoptees might apply for birth records during their adult years).
22. Adopted and technologically conceived children have identical needs for non- identifying health information about their biological families. Children from both groups may also want information about the identity of their biological progenitors. Some experts have suggested that technologically conceived children will want such identifying information less frequently - adopted children may be more inclined to feel rejected by their biological parents and thus want explanatory information - but we know that some technologically conceived children do want such information, and want it badly. See Margaret R. Brown, Whose Eyes Are These, Whose Nose?, NEWSWEEK, Mar. 7, 1994, at 12; Peggy Orenstein, Are You My Father?, N.Y. TIMES, June 18, 1995, § 6 (magazine); Karen M. Thomas, The Donor Connection: Families Are Chipping Away at the Taboos and Secrecy that Once Surrounded Artificial Insemination, DALLAS MORNING NEWS, Nov. 23, 1997, at IF. On the other hand, only a small fraction of adoptees ultimately seek the identity of their biological parents. See William Feigelman & Arnold Silverman, Adoptive Parents, Adoptees, and the Sealed Record Controversy, 67 SOC. CASEWORK 219 (1986) (finding that 15% of children of surveyed adoptive parents had asked to see their adoption records and 4% had contacted birth families); John P. Triseliotis, Obtaining Birth Certificates, in ADOPTION: ESSAYS IN SOCIAL POLICY, LAW, AND SOCIOLOGY 34 (Philip Bean ed., 1984) (based on adoptees' applications for access to birth records in Great Britain, estimating that 21% of all British adoptees might apply for birth records during their adult years).
23. Adopted and technologically conceived children have identical needs for non- identifying health information about their biological families. Children from both groups may also want information about the identity of their biological progenitors. Some experts have suggested that technologically conceived children will want such identifying information less frequently - adopted children may be more inclined to feel rejected by their biological parents and thus want explanatory information - but we know that some technologically conceived children do want such information, and want it badly. See Margaret R. Brown, Whose Eyes Are These, Whose Nose?, NEWSWEEK, Mar. 7, 1994, at 12; Peggy Orenstein, Are You My Father?, N.Y. TIMES, June 18, 1995, § 6 (magazine); Karen M. Thomas, The Donor Connection: Families Are Chipping Away at the Taboos and Secrecy that Once Surrounded Artificial Insemination, DALLAS MORNING NEWS, Nov. 23, 1997, at IF. On the other hand, only a small fraction of adoptees ultimately seek the identity of their biological parents. See William Feigelman & Arnold Silverman, Adoptive Parents, Adoptees, and the Sealed Record Controversy, 67 SOC. CASEWORK 219 (1986) (finding that 15% of children of surveyed adoptive parents had asked to see their adoption records and 4% had contacted birth families); John P. Triseliotis, Obtaining Birth Certificates, in ADOPTION: ESSAYS IN SOCIAL POLICY, LAW, AND SOCIOLOGY 34 (Philip Bean ed., 1984) (based on adoptees' applications for access to birth records in Great Britain, estimating that 21% of all British adoptees might apply for birth records during their adult years).
24. Jesse Green, Orbiting the Son, N.Y. TIMES, Aug. 8, 1999, § 6 (magazine), at 66.
25. See Note, Children Born of the Marriage - Res Judicata Effect on Later Support Proceedings, supra note 9; ALI PRINCIPLES, supra note 9, at § 3.02A comment d (citing cases and noting that "[m]ost states find husbands estopped from challenging paternity under certain facts"). See also Gursky v. Gursky, 242 N.Y.S.2d 406 (Sup. Ct. 1963) (holding child illegitimate but husband liable for child's support based on consent to AID).
26. See Note, Children Born of the Marriage - Res Judicata Effect on Later Support Proceedings, supra note 9; ALI PRINCIPLES, supra note 9, at § 3.02A comment d (citing cases and noting that "[m]ost states find husbands estopped from challenging paternity under certain facts"). See also Gursky v. Gursky, 242 N.Y.S.2d 406 (Sup. Ct. 1963) (holding child illegitimate but husband liable for child's support based on consent to AID).
27. McDonald v. McDonald, 608 N.Y.S.2d 477 (App. Div. 1994).
28. See, e.g., In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Cal. App. Ct. 1998).
29. See Unif. Premarital Agreements Act § 3(b), 9B U.L.A 376 (1987) ("The right of a child to support may not be adversely affected by a premarital agreement"); IRA M. ELLMAN ET AL., FAMILY LAW: CASES, TEXT, PROBLEMS 839 (3d ed. 1998) ("Long tradition in the domestic relations area would seem to ensure . . . that courts would not consider themselves bound by custody provisions they believed injurious to the child's interest. The law of separation agreements in every states is explicit on that point, and there is no reason why premarital agreements would be treated differently.") See also Osborne v. Osborne, 428 N.E.2d 810 (Mass. 1981) (custody); Combs v. Sherry-Combs, 865 P.2d 50 (Wyo. 1993) (support); Straub v. B.M.T., 645 N.E.2d 597 (Ind. 1994) (preconception contract between unmarried sexual partners absolving potential father of support obligations).
30. The leading decision on surrogacy is, of course, In re Baby M., 537 A.2d 1227 (N.J. 1988). See also In re Moschetta, 25 Cal. Med. Rep. 4th 1218 (1994); R.R. v. M.H, 689 N.E.2d 790 (Mass. 1998). For cases involving sperm donors and mothers, see Jhordan C. v. Mary K., 224 Cal. Rptr. 530 (Cal. Ct. App. 1986); C.M. v. C.C., 377 A.2d 821 (N.J. Super. Ct. 1977); In re Interest of R.C., 775 P.2d 27 (Colo. 1989). But see Leckie v. Voorhies, 875 P.2d 521 (Or. Ct. App. 1994) (granting summary judgment against sperm donor who had signed written contract providing that his visitation was at the convenience of lesbian couple and that he would not assert parental claims). For other cases, see Annot., Rights and Obligations Resulting from AI, 83 A.L.R. 4th 295 (1991).
31. See Arrendondo v. Nodelman, 622 N.Y.S.2d 181 (Sup.Ct. 1994) (determining maternity genetically); Belsito v. Clark, 644 N.E.2d 760 (Ohio Ct. Com. Pleas 1994) (same).
32. Johnson v. Calvert, 851 P.2d 77 (Cal. 1993).
33. Compare Stiver v. Parker, 975 F.2d 261 (6th Cir. 1992) (based on blood tests revealing "ordinary" surrogate's husband to be the genetic father of child born with severe handicaps - and whom neither the sperm donor nor "surrogate" mother wanted-surrogate and husband declared legal parents despite contract and intention of sperm donor and his wife to become legal parents).
34. Some commentators have urged that parentage should be determined based on gestation rather than intention or genetic tie. Gestation is, on the surface at least, a traditional method of determining motherhood. But to rely on gestation as the determinant of motherhood and genetics as the determinant of fatherhood would undesirably introduce a gender-specific approach to the determination of parentage. Moreover, none of the policy values that, in determining fatherhood, have been thought significant enough to trump biology apply in the case of gestational surrogacy; the gestator's contributions to the child's development, while vital, do not induce the kind of dependence and attachment on the part of the child that have led courts to protect established relationships. To focus on women's gestational role as the prime determinant of parenthood would also suggest that, if and when a mechanical incubator capable of sustaining fetal life and development throughout pregnancy is developed, the machine should be recognized as "mother."
35. The 1973 Uniform Parentage Act set out the principle that "[i]f, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived." Unif. Parentage Act § 5, 9B U.L.A. 287, 301 (1987). As of 1994, fifteen states had adopted the Uniform Parentage Act or a virtually identical standard; fifteen others had enacted statutes that varied by eliminating the licensed physician requirement. See Commentary to Uniform Status of Children of Assisted Conception Act (USCACA) § 4, 9B U.L.A. 155 (Supp. 1994). See also Kathryn Lorio, Alternative Means of Reproduction: Virgin Territory for Legislation, 44 LA. L. REV. 1641, 1645 (1984) (listing 21 states requiring physician implantation).
36. A few states have already extended their AID statutes to provide for a similar approach in cases of IVF with donated ova and gametes. See FLA. STAT. ANN. § 742.11 (1998); N.D. CENT. CODE § 14-18-04 (Michie 1991); OKLA. STAT. ANN. tit. 10 § 555 (West. Supp. 1998); TEX. FAM. CODE ANN. § 151.103 (West 1997); VA. CODE ANN. § 20-158 (Michie 1995).
37. In the Matter of Baby M, 537 A.2d 1227 (N.J. 1988).
38. Today, almost half of the states have legislation dealing with surrogacy; some state laws criminalize participation in and/or brokering of a surrogacy agreement and some explicitly permit noncommercial surrogacy. See IRA ELLMAN ET AL., FAMILY LAW: CASES, TEXT, PROBLEMS 1498 (3d ed. 1998).
39. See also ROBERT BLANK & JANNA C. MERRICK, HUMAN REPRODUCTION, EMERGING TECHNOLOGIES, AND CONFLICTING RIGHTS 125, tbl. 5-1 (1995) (categorizing state laws). Only a handful of states permit any form of commercial surrogacy. See, e.g., FLA STAT. ANN. § 63-212 (West 1997 & Supp. 1998); N.H. STAT. ANN. §§ 168-B-1-B:32 (1994 & 1996 Supp.) (recognizing judicially approved surrogacy contracts, specifying allowable payments, and allowing surrogate to rescind agreement within 72 hours of child's birth); NEV. REV. STAT. § 127.287 (Michie 1993) (excluding from baby-selling prohibitions a "lawful contract to act as a surrogate" while "not prohibit[ing] a natural parent from refusing to place a child for adoption after its birth"); VA. CODE ANN. §§ 20-156 et seq. (Michie 1995) (setting out requirements for enforceable surrogacy contract, permitting payment of "reasonable medical and ancillary costs," and authorizing surrogate rescission of contract within 180 days of conception). Both the New Hampshire and Virginia laws ostensibly forbid payment to surrogates, but contain broad exceptions allowing payment of the surrogate's "expenses."
40. In 1995, only ten states had statutes dealing with gestational surrogacy. See Lori B. Andrews, Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood, 81 VA. L. REV. 2343, 2350 n. 16 (1995).
41. Ova are rarely "donated" without compensation; many "donors" are sought through advertising and paid fees of $3,000 or more. See Brigitte Greenberg, Infertile Couples Shop for Ivy League Eggs, BUFFALO NEWS, Jan. 4, 1999, at 4A; Jan Hoffman, Egg Donations Meet a Need and Raise Ethical Questions, N. Y. TIMES, Jan. 8, 1996, at 1; Adrienne Knox, What's a Human Egg Worth? Debate Intensifies, MINN. STARTRIBUNE, Apr. 5, 1998, at 1E.
42. Ova are rarely "donated" without compensation; many "donors" are sought through advertising and paid fees of $3,000 or more. See Brigitte Greenberg, Infertile Couples Shop for Ivy League Eggs, BUFFALO NEWS, Jan. 4, 1999, at 4A; Jan Hoffman, Egg Donations Meet a Need and Raise Ethical Questions, N. Y. TIMES, Jan. 8, 1996, at 1; Adrienne Knox, What's a Human Egg Worth? Debate Intensifies, MINN. STARTRIBUNE, Apr. 5, 1998, at 1E.
43. Ova are rarely "donated" without compensation; many "donors" are sought through advertising and paid fees of $3,000 or more. See Brigitte Greenberg, Infertile Couples Shop for Ivy League Eggs, BUFFALO NEWS, Jan. 4, 1999, at 4A; Jan Hoffman, Egg Donations Meet a Need and Raise Ethical Questions, N. Y. TIMES, Jan. 8, 1996, at 1; Adrienne Knox, What's a Human Egg Worth? Debate Intensifies, MINN. STARTRIBUNE, Apr. 5, 1998, at 1E.
44. Linda Nielsen, Legal Consensus and Divergence in Europe in the Area of Assisted Conception - Room for Harmonization?, in CREATING THE CHILD: THE ETHICS, LAW, AND PRACTICE OF ASSISTED CONCEPTION 305, 315-16 (Donald Evans ed., 1996) [hereinafter CREATING THE CHILD].
45. PROCEED WITH CARE, supra note 1, at 477, 572, 593 (recommending that sperm donors be compensated "only for their inconvenience and . . ., the direct costs of donation," that "payment for egg donation not be permissible," and that "[a]ssisted conception services should not operate on a for-profit basis").
46. 42 U.S.C. § 274(b).
47. WILLIAM J. CURRAN ET AL., HEALTH CARE LAW AND ETHICS 1054 (5th ed. 1998).
48. For a detailed description of the British regulatory scheme, see DEREK MORGAN & ROBERT G. LEE, BLACKSTONE's GUIDE TO THE HUMAN FERTILIZATION & EMBRYOLOGY ACT 1990 (1991).
49. Michael D. Lemonick, The New Revolution in Making Babies: A Host of Breakthroughs - From Frozen Eggs to Borrowed DNA - Could Transform the Treatment of Infertility, TIME, Dec. 1, 1997 (describing variation in access criteria).
50. Embryo sales, on the other hand, can easily be analogized to baby sales. See Gina Kolata, Clinics Selling Embryos Made for Adoption, N. Y. TIMES, Nov. 29, 1997, at 1A.
51. Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); Kass v. Kass, 696 N.E.2d 174 (N. Y. 1998).
52. Kane v. Superior Court (Hecht), 44 Cal. Rptr. 2d 578 (Cal. App. 1995).
53. Hall v. Fertility Inst, of New Orleans, 647 So. 2d 1348 (La. Ct. App. 1994).
54. See Diana Jean Schemo, Adoptions in Paraguay: Mothers Cry Theft, N.Y. TIMES, Mar. 19, 1996, at A1.
55. See JONATHAN GLOVER ET AL., ETHICS OF NEW REPRODUCTIVE TECHNOLOGIES: THE GLOVER REPORT TO THE EUROPEAN COMMISSION 15 (1989).
56. See also WHAT PRICE PARENTHOOD? ETHICS AND ASSISTED REPRODUCTION 104 et seq. (Courtney S. Campbell ed., 1992) (surveying policy development in a number of nations); Jean Martin, Prioritising Assisted Conception Services, in CREATING THE CHILD, supra note 28 (briefly describing work of commissions in the Netherlands and Sweden).
57. See also WHAT PRICE PARENTHOOD? ETHICS AND ASSISTED REPRODUCTION 104 et seq. (Courtney S. Campbell ed., 1992) (surveying policy development in a number of nations); Jean Martin, Prioritising Assisted Conception Services, in CREATING THE CHILD, supra note 28 (briefly describing work of commissions in the Netherlands and Sweden).