Clarifying the Law of ART: The New American Bar Association Model Act Governing Assisted Reproductive Technology

Family Law Quarterly

Volumn 42, Issue 2, 2008, Pages 203-229

  Kindregan Jr , Charles P ^a   Snyder, Steven H ^a,b  

^a SUFFOLK UNIVERSITY   (United States)

^b ABA Section of Family Law Reproductive and Genetic Technologies Committee ^*

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EID: 54049130486     PISSN: 0014729X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (161)

1. Remarkably, some forms of assisted reproductive technology (ART) were used for decades seemingly without causing legal controversy. The first report of intrauterine insemination in the United States occurred in 1866, as noted in Johnson v. Super. Ct., 101 Cal. App. 4th 869, 881 (2002).
2. In 1962, the ABA JOURNAL published one of the first articles dealing with the potential legal ramifications of ART. See generally W. Barton Leach, Perpetuities in the Atomic Age: The Sperm Bank and the Fertile Decedent, 48 A.B.A. J. 942 (1962) (noting that posthumous reproduction using gametes of deceased persons could disrupt the law of perpetuities).
3. "Assisted reproduction" means the technology of "causing pregnancy through means other than by sexual intercourse." MODEL ACT GOVERNING ASSISTED REPROD. TECH. § 102(1) (2008) [hereinafter MODEL ACT]. Examples include intrauterine insemination, egg donation, embryo donation, in vitro fertilization, embryo transfer, and intracytoplasmic sperm injection. See generally CHARLES P. KINDREGAN, JR., & MAUREEN MCBRIEN, ASSISTED REPRODUCTIVE TECHNOLOGY: A LAWYER'S GUIDE TO EMERGING LAW AND SCIENCE (2006) (providing examples of ART). As the definition makes clear, non-ART reproduction involves intercourse; however, a few cases involve transfer of sperm by oral sex followed by insemination, and such cases are excluded from ART. See. e.g., Phillips v. Irons, No. 1-03-2992, 2005 WL 4694579 (Ill. App. Ct. Feb. 22, 2005) (female self-inseminated using sperm kept in her mouth following oral sex).
4. For analysis of the evolving procreative realities of nontraditional families, see generally Sara S. David, Turning Parental Rights into Parental Obligations: Holding Same-Sex, Non-biological Parents Responsible for Child Support, 39 NEW ENG. L. REV. 921 (2005);
5. Courtney G. Joslin, The Legal Parentage of Children Born to Same-Sex Couples: Developments in the Law, 39 FAM. L.Q. 683 (2005);
6. John A. Robertson, Gay and Lesbian Access to Assisted Reproductive Technology, 55 CASE WESTERN RES. L. REV. 323 (2004);
7. Sanja Zgonjanin, What Does It Take to Be a (Lesbian) Parent?, 16 HASTINGS WOMEN'S L.J. 251 (2005);
8. Changing Realities of Parenthood: The Law's Response to the Evolving American Family and Emerging Reproductive Technologies, 116 HARV. L. REV. 2052 (2003);
9. Note, Reproductive Technology and the Procreation Rights of the Unmarried, 98 HARV. L. REV. 669 (1985).
10. For example, California appellate court judges joined "the chorus of judicial voices pleading for legislative attention to the increasing number of complex legal issues spawned by recent advances in the field of artificial reproduction." Prato-Morrison v. Doe, 103 Cal. App. 4th 222, 232 n.10 (2002) (noting that legislative guidelines would help participants in ART to make informed choices); see also Hodas v. Morin, 814 N.E.2d 320, 327 n.16 (Mass. 2004) (noting that the legislature is the most appropriate forum to comprehensively address the kinds of issues raised by ART).
11. A number of people devoted numerous hours to the evolution of the Model Act, and without their efforts, it would not have been developed. The project that eventually led to the drafting of the Model Act was initiated during the Committee chairmanship of H. Joseph Gitlin of Illinois, who served as chair from 1987 until 2000. Under his successor as chair, Dr. Bruce Wilder of Pennsylvania, the effort to draft the Model Act took on increased emphasis; Dr. Wilder served as chair until 2004. Charles P. Kindregan, Jr., of Massachusetts chaired the committee until 2007, during which time a complete draft of the Model Act was finished and approved by the ABA Family Law Section. Steven H. Snyder of Minnesota became the chair in August 2007 and guided the final draft through negotiation with other entities and oversaw its final approval with amendments by the ABA House of Delegates on February 11, 2008. Over the course of a decade and a half, ABA members such as Susan L. Crockin of Massachusetts, Ami Jaeger of New Mexico, Theresa Erickson of California, and Maureen McBrien of Massachusetts made substantial contributions to the drafting process. Michael Kerr of the National Conference of Commissioners on Uniform State Laws (NCCUSL) also worked on this project and provided expertise on a number of drafting issues. The ABA Sections on Real Property, Probate and Trust Law, Health Law, Science and Technology, Individual Rights and Responsibilities, Family Law, and Young Lawyers, as well as interested individuals from other legal and medical groups also contributed in varying degrees to the evolution of the Model Act.
12. See generally In re Baby M, 537 A.2d 1227 (N.J. 1988) (ruling that a surrogate carrier whose own egg was fertilized by intrauterine insemination with the intended father's sperm was the legal mother, and her preconception agreement to turn over any child so conceived to the intended parents was contrary to public policy and not enforceable); Judith Areen, Baby M Reconsidered, 76 GEO. L.J. 1741 (1988) (using Baby M as basis for arguing that the law should discourage surrogacy contracts).
13. The Model Act defines a "gestational carrier" as "an adult woman, not an intended parent, who enters into a gestational agreement to bear a child." MODEL ACT § 102 (17). Although, as noted in the text, many make a distinction between a "traditional surrogate" whose own egg is fertilized and a "gestational surrogate" who carries an embryo produced with an egg of another woman, the drafters of the Model Act note but do not use that distinction in defining a "gestational carrier." Id. In a gestational carrier arrangement as provided in Alternative B in Article 7 of the Model Act, at least one of the intended parents must have made a genetic contribution to the child birthed by the gestational carrier. Id. at MODEL ACT § 702(2)(a).
14. See supra note 2 for a definition of assisted reproduction and some examples.
15. While the term collaborative reproduction is sometimes used to mean assisted reproduction, the Model Act defines it to mean "any assisted reproduction in which an individual other than the intended parent(s) provides genetic material or agrees to act as a gestational carrier." MODEL ACT § 102(5).
16. A report of the Center for Disease Control indicated that 122,872 ART procedures were started in 2003, resulting in 43,503 pregnancies and 48,758 infants born. VICTORIA CLAY WRIGHT ET AL., DIV. OF REPROD. HEALTH, NAT'L CTR. FOR CHRONIC DISEASE PREVENTION & HEALTH PROMOTION, ASSISTED REPRODUCTIVE TECHNOLOGY SURVEILLANCE - UNITED STATES, 2003 tbl.2 (2003), http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5504a1.htm#tab2 (providing state-by-state reports on ART, as required by the federal Fertility Clinic Success Rate and Certification Act of 1992, Pub. L. No. 102-493, 106 Stat. 3146 (1992)).
17. Marshall J. Wolf, to the ABA House of Delegates in Support of the Model Act (Feb. 11, 2008).
18. The UNIF. PARENTAGE ACT, 9B U.L.A. 355 (2000), was amended in 2002 to deal with parentage issues created by assisted reproduction.
19. The drafters of the Model Act incorporated a legislative note in Articles 6 and 7, stating that the Model Act is not intended to conflict with or supersede provisions of the Uniform Parentage Act or the Uniform Probate Code. MODEL ACT arts. 6-7 (Legislative Note).
20. See id. at art. 7 (Alternative B). This alternative will be discussed in more detail subsequently in this article.
21. House of Delegates Vote (Aug. 10, 2004). The cloning resolution was drafted and proposed by the same ABA Family Law Section Committee that later drafted the Model Act. While opposing the use of cloning to create human beings, the resolution also made clear that if such children are reproduced, they are entitled to all the rights of other human persons.
22. MODEL ACT § 102(1).
23. "Infertility treatment" is defined in the Model Act as "any medical treatment reasonable and necessary for an intended parent to achieve a live birth." Id. at § 102(17); see generally Levin v. Levin, 645 N.E.2d 601 (Ind. 1994) (husband was sterile); Lane v. Lane, 912 P.2d 290 (N.M. Ct. App. 1996) (husband had vasectomy); J.B. v. M.B., 783 A.2d 707 (N.J. 2001) (wife unable to become pregnant but could produce eggs for in vitro fertilization).
24. There are many reported decisions involving children conceived by ART for same-sex parents. See generally K.M. v. E.G., 117 P.3d 673 (Cal. 2005) (female partner donated egg to her same-sex partner); Elisa B. v. Super. Ct., 117 P.3d 660 (Cal. 2005) (child support issue arose from same-sex partnership decision to have one partner conceive a child); A.H. v. M.P., 857 N.E.2d 1061 (Mass. 2006) (child conceived in same-sex relationship when one female partner used donor sperm); Melanie B. Jacobs, Micah Has One Mommy and One Legal Stranger: Adjudicating Maternity for Non-biological Lesbian Coparents, 50 BUFF. L. REV. 341 (2002) (noting lack of legal recognition as to coparents in lesbian relationships);
25. Sara S. David, Turning Parental Rights into Parental Obligations: Holding Same-Sex Non-biological Parents Liable for Child Support, 39 NEW ENG. L. REV. 921 (2005) (discussing parental status of persons in same-sex relationships).
26. See generally J.F. v. D.B., 879 N.E.2d 740 (Ohio 2007); J.F. v. D.B., 941 A.2d 718 (Pa. Super. Ct. 2008) (man commissioned a surrogate to carry children for him); P.G.M. v. J.M.A., No. A07-452, 2007 WL 4304448 (Minn. Ct. App. Dec. 11, 2007) (HIV positive gay man used a genetically related surrogate to have a child).
27. One report stated that a sixty-seven-year-old Spanish woman became pregnant by in vitro fertilization and delivered twins. Thomas Catan, World's Oldest Mum Seeks Younger Man to Help with Twins, THE AUSTRALIAN, Jan. 29, 2007, http://www.theaustralian.news.com.au/story/ 0.20867, 21134363-2703,00.html.
28. See generally Charles P. Kindregan, Jr., & Maureen McBrien, Posthumous Reproduction, 39 FAM. L.Q. 579 (2005) (discussing the use of gametes of deceased persons for ART procedures). For example, a New Jersey court noted that a deceased man had during his life banked gametes with the intent that the mother could bear his child after his death. See In re Estate of Kolacy, 753 A.2d 1257, 1260 (N.J. Super. Ct. Ch. Div. 2000) (holding that court should determine legal status of posthumously conceived child even if deceased parent's estate has no assets to distribute).
29. See generally Susan B. Apel, Cryopreserved Embryos: A Response to "Forced Parenthood" and the Role of Intent, 39 FAM. L.Q. 663 (2005) (criticizing embryo disposition decisions for misusing the intended parent theory);
30. Charles P. Kindregan, Jr., & Maureen McBrien, Embryo Donation: Unresolved Legal Issues in the Transfer of Surplus Cryopreserved Embryos, 49 VILL. L. REV. 169 (2004) (discussing the various unresolved legal issues arising from the transfer of embryos);
31. Jaime E. Conde, Embryo Donation: The Government Adopts a Cause, 13 WM. & MARY J. WOMEN & L. 273 (2006) (noting the Bush administration's financial support for and promotion of embryo adoption).
32. The Model Act was submitted to the ABA House of Delegates with the following written comment as to the need for such legislation: "The recommended Model Act would provide legislative guidance regarding the emerging legal problems created by the increasing resort to reproductive technologies by persons seeking to become parents by non-sexual means, the various persons who collaborate with them, and the children who are the product of assisted reproduction. States currently have little or no law governing these matters, leaving lawyers who advise participants, as well as donors, patients, and intended parents in a state of ignorance in regard to status, rights and responsibilities." James Preston, Chair, ABA Family Law Section, Report to the House of Delegates (Aug. 2007).
33. MODEL ACT Prefatory Note.
34. Id.
35. Id. at § 102(1).
36. Id. at § 102(5).
37. Id. at § 102(11). The question of what is an embryo is somewhat confusing, so the definition provided in the Model Act may offer clarification. What the Model Act calls an embryo is sometimes also called a "preembryo," a "zygote," or a "pre-implantation embryo" in court decisions and literature. Cryopreservation of the entity in the process of in vitro fertilization would technically occur prior to the stage when the medical literature considers it sufficiently developed to be called an embryo, but the drafters of the Model Act felt that as defined, the use of the simple word "embryo" would be more practical. For different views, see generally Susan Crockin, What Is an Embryo?: A Legal Perspective, 36 CONN. L. REV. 1177 (2004);
38. Howard W. Jones, and Just What Is a Pre-embryo?, 52 J. FERTILITY & STERILITY 189 (1989);
39. Howard W. Jones, What Is an Embryo?, 77 J. FERTILITY & STERILITY 658 (2002).
40. MODEL ACT § 102(17). Some people make a distinction between a carrier who has a genetic connection to the child ("traditional surrogate") and one who does not ("gestational surrogate"). In J.F. v. D.B., 879 N.E.2d 740 (Ohio 2007), the court ruled that a gestational surrogacy agreement does not violate public policy and stated in dicta that the legal position of a traditional surrogate whose own egg is used to produce the pregnancy may be different from that of a gestational surrogate; the Model Act would eliminate this distinction and treat both examples as being gestational carriers. In most reported decisions and much of the literature, a gestational carrier is frequently referred to as a "surrogate." The UNIF. PARENTAGE ACT § 102(11) (2000) uses the term "gestational mother." The drafters of the Model Act employ the term "carrier" in order to avoid the negative connotations that some people associate with words such as " surrogate" or "surrogate mother."
41. MODEL ACT § 102(18).
42. Id. at art. 7 (Alternative B).
43. Id. at § 102(27).
44. Id. at § 102(28).
45. Id. at § 102(21).
46. Cryopreservation of an embryo means that after fertilization and preliminary treatment, the embryo is suspended in an aqueous medium, and a cryopreservant is used to substitute for water as the embryo dehydrates. The embryo is then cooled off at about negative 80 degrees centigrade and transferred to storage in liquid nitrogen where it cools to negative 196 degrees centigrade.
47. MODEL ACT § 102(9).
48. Id. at § 102(32).
49. Id. at § 101(31).
50. Decisions resolving divorce disputes over disposition of embryos reflect different solutions. See generally Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) (favoring contract enforcement, but stating that if no contract exists, the court should consider reproductive rights choice); A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000) (rejecting contract theory); J.B. v. M.B., 783 A.2d 707 (N.J. 2001) (generally favoring party wishing to avoid parentage); Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998) (enforcing contract to donate embryos for research); Roman v. Roman, 193 S.W.3d 40 (Tex. App. 2006) (enforcing contract that in event of divorce, the embryos should be discarded).
51. See generally York v. Jones, 717 F. Supp. 421 (E.D. Va. 1989) (dispute between clinic and patients over right to transfer cryopreserved embryos).
52. MODEL ACT art. 2.
53. Id. at § 202.
54. Id. at § 202(1)(b).
55. Id. at § 203.
56. Id. at § 203(2).
57. Id. at § 203(3).
58. Id. at § 203(4).
59. Id. at § 203(5).
60. Id. at § 102(10).
61. Id. at § 602.
62. Id. at § 603.
63. Article 6 of the Model Act defines the status of a child of assisted reproduction. Id. at art. 6.
64. Article 7 of the Model Act governs gestational agreements. Id. at art. 7.
65. Id. at § 102(10).
66. Id. at § 503. See generally Puretta v. Med. Offices for Human Reprod., 760 N.Y.S.2d 639 (Sup. Ct. 2003) (holding that plaintiffs could recover for pecuniary expenses for child).
67. MODEL ACT § 204(1). But see Michelle Dennison, Revealing Your Sources: The Case for Non-anonymous Gamete Donation, 21 J.L. & HEALTH 1 (2008) (arguing that gamete donors should not be anonymous and that children of ART should have a legal right to know the identity of their genetic parent).
68. MODEL ACT § 204(3).
69. Id. at § 204(2).
70. Id. at § 102(36).
71. M. at § 801(1).
72. Id. at § 801(3). Other economic losses that occur before the donor enters into a valid donation agreement are not subject to reimbursement. Id. at § 801(2).
73. Id. at § 802.
74. Id. at § 205(1).
75. Id. at § 205(2).
76. Id. at § 205(3).
77. Id. at § 205(2).
78. Id. at § 205(3).
79. Id. at § 607.
80. An exception is CAL. PROB. CODE § 248.5 (West 2007), which, for purposes of inheritance, deems such a posthumous child to have been born during the parent's lifetime if he or she consented in writing during life and designated a specific person to have the audiority to use the gametes, as long as the child is in utero within two years of the parent's death. Contrary to the California statute, North Dakota prohibits a posthumously conceived child from inheriting. See N.D. CENT. CODE § 14-18-07 (2007). Most states have no statute dealing with this issue directly, but enactment of the Model Act would change that.
81. See generally Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004) (holding that posdiumously conceived children are dead father's legitimate children); Woodward v. Comm'r of Soc. Sec., 760 N.E.2d 257 (Mass. 2002) (concluding that posthumous children conceived after father's death are his legal heirs); In re Estate of Kolacy, 753 A.2d 1257 (stating that even if no assets were left in father's estate, the legal status of his posthumous children should be established); Finley v. Astrue, No. 07-627 2008 WL 96775 (Ark. Jan. 10, 2008) (holding that child resulting from embryo implanted in mother after father's death was not legal heir of father under state's intestacy law).
82. MODEL ACT § 301(1). A bracketed provision, which is an optional proposal for consideration of legislators, would make the counseling accord with the standards of the American Society of Reproductive Medicine (ASRM) and the Society of Assisted Reproductive Technology (SART).
83. Id. at § 102(7).
84. Id. at §§ 301(2), 302 (setting out additional counseling requirements).
85. Id. at § 301(3).
86. Id. at § 401.
87. Id. at § 301(1).
88. For a summary of the law governing the use of cryopreserved embryos, see generally Charles P. Kindregan, Jr., & Maureen McBrien, Assisted Reproductive Technology: A Lawyer's Guide to the Emerging Law and Technology ch. 4 (2006);
89. Susan Crockin, The "Embryo" Wars: At the Epicenter of Science, Law, Religion and Politics, 39 FAM. L.Q. 599 (2005).
90. MODEL ACT § 501.
91. Id. at §§ 501(1), 501(3)(a)-(b) (requiring parties to agree on use of the embryos in the event of divorce, illness, incapacity, or death and to clarify which intended parent may control the embryos).
92. Id. at § 501(3)(c).
93. Id. at § 502(1). The other patients can be known or anonymous.
94. Id. at § 502(2).
95. Id. at § 504.
96. No one really knows how many embryos are in storage worldwide, but an estimate of about 500,000 in the United States alone seems realistic, if somewhat conservative. See Kindregan, Jr., & McBrien, supra note 22, at 170-72 (discussing surplus unused embryos).
97. MODEL ACT § 504(3). Because of reports of criminal misappropriation of embryos in a clinic, California enacted a statute making theft of embryos a crime punishable by three to five years of imprisonment and a fine of up to $50,000. CAL. PENAL CODE § 367g (2007).
98. MODEL ACT Prefatory Note. Until recently, maternity was determined by who gave birth; a legal presumption as to paternity was determined by marriage to the birth mother, and determination of parentage was achieved by a judgment based on genetic markers in accord with the state's parentage statute or by a decree of adoption. Except as to adoption, the growing use of ART has thrown these traditional tests into confusion when applied to children produced by this technology. In ART cases, there has been greater use of other normative models for determining parentage in addition to biology, including contracts and social relationships. See generally Angela Campbell, Conceiving Parents Through Law, 21 INT'L J.L. POL'Y & FAM. 242 (2007) (noting inconsistencies in legal determination of parentage of ART children and urging the development of a better normative framework both in theory and in accord with the experiences lived by children).
99. MODEL ACT § 601. The status of parents and children produced by gestational agreements are provided for in Article 7 the Model Act. Id. at art. 7.
100. Id. at § 602.
101. Id. at § 603. The gamete provider who intends to be a parent should consent in a record under section 604(1), but section 604(2) allows a finding of paternity even if there is a recorded consent when the gamete provider lived with the intended parent for two years following the birth, resided with the child, and openly held out the child as their own. Id. at § 604(1)-(2).
102. Id. at § 605(1).
103. Id. at § 605(2).
104. Id. at § 606(1).
105. Id. at § 606(2).
106. Id. at art. 7.
107. Id. at § 701(1) (Alternative A).
108. Id. at § 701(1)(b).
109. See generally John J. Sampson, Preface to the Amendments to the Uniform Parentage Act (2002), 37 FAM. L.Q. 1 (2003) (analyzing 2002 amendments to the UNIF. PARENTAGE ACT art. 8).
110. MODEL ACT § 702(1) (Alternative A).
111. Id. at § 702(2)(a). In contrast, a Massachusetts court in Hodas v. Morin, 814 N.E.2d 320 (Mass. 2004), accepted jurisdiction to issue a prebirth order, even though neither the intended parents nor the gestational carrier were residents of that state; the child was scheduled to be born in a Massachusetts hospital.
112. MODEL ACT § 703 (Alternative A).
113. UNIF. CHILD CUSTODY JURISDICTION & ENFORCEMENT ACT § 201 (1997), 9(1A) U.L.A. 657 (1999).
114. MODEL ACT § 703(2)(b) (Alternative A).
115. Id. at § 706. Under section 706(2), the court may also terminate the gestational agreement for good cause.
116. Id. at § 706(4).
117. Id. at § 707(1).
118. Such an allegation could be that the child is not the result of the implanted gametes but rather is the result of sexual acts between the prospective gestational carrier and her spouse or some other man.
119. Id. at § 707(2).
120. Id. at § 709.
121. 750 Ill. COMP. STAT. 47/5 (2005).
122. The Illinois legislation is discussed in Nancy Ford, The New Illinois Gestational Surrogacy Act, 93 ILL. B.J. 240 (2005);
123. Debra J. Braselton & Maxine Kunz, Non-traditional Families and Alternative Family Building: Securing Parental Rights for Intended Parents, 20 DCBA BRIEF 30 (Dec. 2007).
124. MODEL ACT § 701(2)(a) (Alternative B). A child who is not procreated in accord with the statute is presumed to be the child of the birth mother. Id. at § 701(1).
125. Id. at § 702.
126. See generally Buzzanca v. Buzzanca, 72 Cal. Rptr. 2d 280 (Ct. App. 1998) (holding that because embryos were produced by male and female gametes provided by donors, neither the intended parents nor the gestational carrier had any genetic connection to the child).
127. MODEL ACT § 702(2)(a) (Alternative B).
128. Id. at § 702(2)(b). The most obvious example of such a medical need is some form of infertility, such as an inability to produce a pregnancy or to carry a pregnancy to term.
129. Id. at § 702(2)(c)-(d).
130. Id. at § 703(a)(f).
131. Id. at § 705.
132. Id. at § 709(2).
133. Id. at § 709(1).
134. Some members of the drafting committee expressed concerns about including reference to standards proposed by private nongovernmental groups.
135. MODEL ACT § 711 (Alternative B).
136. Florida bans compensated surrogacy but permits unpaid surrogacy arrangements. FLA. STAT. § 742.15 (2008). Kentucky bans compensated surrogacy. KY. REV. STAT. ANN. § 199.590(4) (West 2008). Louisiana bans compensated surrogacy, but allows unpaid surrogacy arrangements. LA. REV. STAT. ANN. § 9:2713 (2008). Washington denies enforcement of surrogacy agreements involving payment to the gestational carrier. WASH. REV. CODE § 26.26.240 (2008). Several states that prohibit payments as part of the transfers of children specifically exempt payments to surrogates from mis ban. See, e.g., ALA. CODE §§ 26-10A-34(a)-(b) (2008); IOWA CODE § 710.11 (2008); W. VA. CODE § 48-22-803(e)(3) (2008).
137. MODEL ACT § 801(1). Actual economic losses occurring before the donor enters a valid agreement cannot be reimbursed, except for premiums paid for insurance against economic losses directly resulting from retrieval or storage of gametes or embryos for donation. Id. at § 801(2).
138. Id. at § 801(3).
139. Id. at § 802(1).
140. Id. at § 802(2)-(3).
141. Id. at § 901(1). The Model Act prohibits the denial of insurance coverage for those forms of infertility set out in (a) or (b) of this section.
142. See CHARLES P. KINDREGAN, JR., & MAUREEN MCBRIEN, ASSISTED REPRODUCTIVE TECHNOLOGY: A LAWYER'S GUIDE TO EMERGING LAW AND SCIENCE §§ 6.2-6.3 (2006) (reviewing concepts of infertility and state insurance laws governing ART).
143. MODEL ACT § 902.
144. Id. at § 903(a)-(b).
145. Id. at § 903(c).
146. Id. at § 1001.
147. Id. at § 1002(1).
148. Id.
149. Id. at § 1002(2).
150. Id. at § 1003.
151. Id. at § 1101(2).
152. Id. at § 1101(3).
153. See generally Chambliss v. Health Sci. Found., Inc., 626 S.E.2d 791 (N.C. Ct. App. 2006) (allowing recovery of compensatory and punitive damages by patient and her female life companion for injury caused by unwashed sperm).
154. See generally Harnicher v. Univ. of Utah Med. Ctr., 962 P.2d 67 (Utah 1998) (denying recovery when clinic used wrong sperm to produce pregnancy); Andrews v. Keltz, 838 N.Y.S.2d 363 (Sup. Ct. 2007) (allowing parents' claims for emotional distress when sperm of unknown donor was used, rather than husband's, on theory of fear that plaintiffs genetic materials may have been used for others and that the child's natural father could interfere with their rights as the child's parents).
155. See generally Jeter v. Mayo Clinic Arizona, 121 P.3d 1256 (Ariz. Ct. App. 2005) (denying recovery on wrongful death of embryos but allowing contract claim for failure to properly store embryos).
156. See generally Creed v. United Hospital, 600 N.Y.S.2d 151 (App. Div. 1993) (denying recovery for emotional harm arising from misplanted embryo); Perry-Rogers v. Obasaju, 723 N.Y.S.2d 28 (App. Div. 2001) (allowing medical malpractice recovery against clinic for misplanted embryo); Perry-Rogers v. Fasano, 715 N.Y.S.2d 19 (App. Div. 2000) (custody dispute between couple who generated the embryo for their own use and the woman who received it by mistake but gestated along with her own genetic child).
157. See generally Doe v. Irvine Scientific Sales Co., Inc., 7 F. Supp. 2d 737 (E.D. Va. 1998) (denying recovery for infliction of emotional distress and economic loss when contaminated albumin destroyed embryos).
158. See generally Joshua Kleinfeld, Tort Law and In Vitro Fertilization: The Need for Legal Recognition of "Procreative Injury," 115 YALE L.J. 237 (2005) (arguing that while tort claims arising out of ART services usually fail because law does not recognize the injury as compensable, this should be changed by recognizing procreative injury).
159. MODEL ACT § 1201(1).
160. Id. at § 1201(2).
161. Id. at § 1201(3).