American Journal of Law & Medicine

A tale of three women: a survey of the rights and responsibilities of unmarried women who conceive by alternative insemination and a model for legislative reform.

I. INTRODUCTION

"The law, wherein, as in a magic mirror, we see reflected, not only our own

lives, but the lives of all men that have been!"

Oliver Wendell Holmes(1)

This is a legal parable of three women, each of whom decides to start a family by Alternative Insemination(2) ("AI"). The first woman is married, but because of infertility, she must use AI to conceive. She and her husband intend to have the child and raise it as their own. The second woman also wants a family, but because she is unmarried, she chooses to use AI to start her family. She might intend to parent alone, or co-parent with another. The third woman is the lesbian partner of an unmarried woman who intends to conceive by AI so that the two may start a family. Once each woman has decided to use AI to conceive, she will begin to walk a common path on which she will face a number of choices, choices common to all AI users. On this path she will have to decide whether to self-inseminate at home or have a doctor perform the insemination and whether to choose a known or an anonymous sperm donor. The paths of the three women will take drastically different turns, however, if the sperm donor asserts paternity rights, because the outcome of such a suit is tied to the comparative social status of the parties.

This Note examines the current state of the law regarding AI and unmarried women and proposes a legislative framework within which the courts may adjudicate the rights of all the parties: the woman, her intended co-parent if she has one, the donor, and the child.(3) Some may find it unacceptable from the start that unmarried heterosexual women and lesbians are using AI to have children. The purpose of this Note is not to question whether people should be creating families in this way, because they will continue to do so regardless of what others think; the purpose is to provide a framework within which to address the resulting legal disputes that will arise absent legislative reform. These non-traditional families, created through AI, are treated as families by their extended families and friends. The question is whether they will receive legal recognition of the established reality of their lives. "[U]nless we start to make family law connect with how people really live, the law is either largely irrelevant or merely ideology: [mere] statements of the kinds of human arrangements the lawmakers do and do not endorse."(4) This Note attempts to expand the magic mirror of the law to enable it to reflect the lives and families of unmarried women who choose motherhood through AI.

Part II demonstrates the need for legislation governing the rights of unmarried women who use AI. A review of existing AI statutes and case law demonstrates that unmarried women who conceive through alternative insemination generally have been unable to protect their familial expectations against a donor's assertion of parental rights. Part Ill makes several recommendations for comprehensive legislative reform and establishes an overall legislative policy.(5) Under the proposed legislation, the parties' mutually formed pre-insemination intent controls the determination of legal parentage.(6) Part IV incorporates the recommendations in Part III in specific statutory provisions and demonstrates how each regulates the rights of the parties involved and resolves situations left ambiguous or untreated by existing law.

A Note To Medical Providers

Through modern reproductive technology you can help people make a miracle by assisting them in creating a child and a family. But because the law in this area lags behind medical science, the family that your technology promises may face years of instability created by conflicting claims of legal parentage and ultimately, that promised family may be reconfigured by the law. This gap between science and law can frustrate the familial expectations of an unmarried woman who conceives by AI, her intended co-parent, and the donor. Many states neglect to address the rights and responsibilities of the parties to AI when the donee is an unmarried woman.(7) Of those that do, many require the woman to have a doctor perform the procedure as a condition of statutory protection or criminalize AI when it is not performed by authorized medical providers.(8) By reporting and analyzing the legal risks of AI when used by an unmarried woman, this Note should help you to understand the possible implications of refusing to perform AI on an unmarried woman and how the law may limit the miracle that medical science offers her.

II. THE CASE FOR COMPREHENSIVE LEGISLATIVE REFORM

There is a compelling need for legislation governing the rights of all the parties to AI, particularly when the mother is unmarried. Statistics demonstrate that women are capitalizing on the availability of AI.(9) In addition, recent court cases document the need for legislation to govern the rights and obligations of all of the parties when (1) the donee is unmarried and the donor is known; (2) the donee is unmarried and the donor is unknown; and (3) the donee is unmarried and the decision to conceive through AI would not have been made but for the involvement of an intended co-parent.

A. The Actual Practice Of AI Demonstrates The Need For Legislative Reform

A significant number of women are turning to alternative insemination to conceive. Consequently, AI is a growing, $164 million industry with 11,000 private physicians and 400 sperm banks.(10) There are no federal regulations governing AI or requiring record-keeping,(11) so estimating the number of women using AI, whether single or married, is haphazard at best. The available studies indicate, however, that the use of AI is increasing. In 1985, at least 20,000 women used AI in the United States(12) and approximately 1,500 of these women were unmarried.(13) By 1987, an Office of Technology Assessments survey ("OTA survey") of doctors and sperm banks showed that 80,000 women in the United States used donor semen for AI, resulting in about 30,000 conceptions.(14) Of these 80,000 women, approximately 8600 were unmarried,(15) and approximately 1700 of the 8600 were lesbians.(16)

These statistics are a starting point for proving that unmarried women are using AI, but they probably under-represent unmarried women because no record-keeping device exists to track women who self-inseminate.(17) Moreover, unmarried women and lesbians are more likely to eschew the established medical profession because they face discrimination by doctors based on marital status or sexual orientation, and, thus, are unlikely to be represented in the statistics.(18) The OTA survey asked doctors how many women they rejected for AI and their reasons for rejection. Responding doctors rejected one of five patients who requested AI.(19) "The most common reason[] [for rejection was] that the patient [was] unsuitable for nonmedical reasons: she [was] unmarried (52 percent), psychologically immature (22 percent), homosexual (15 percent), or welfare-dependent (15 percent)."(20) Only a few facilities have explicit policies barring such discrimination.(21) In fact, a large number of lesbians who conceive through AI self-inseminate with sperm from a known donor.(22)

Alternative insemination has also made its appearance repeatedly in popular culture. Several situation comedies, including Designing Women, Empty Nest, Golden Girls, Murphy Brown, and Roc, have used AI themes, and typically, the proposed mother was unmarried.(23) In addition, the television news show 20120 has aired a segment on lesbians, which included families created with the help of AI.(24) And at least two contemporary films have had AI themes or raised AI as a method of conception.(25)

Statistics, recent court cases,(26) and popular culture all demonstrate that a significant number of unmarried women are turning to AI to achieve motherhood. Because existing law leaves the rights and responsibilities of the unmarried AI user ambiguous, legislation should be enacted to clarify the legal ramifications of AI.

B. The Familial Expectations of Unmarried Women Who Conceive By

AI Are Neither Defined Nor Adequately Protected By

Existing Law

In response to the growing use of AI, the National Conference of Commissioners on Uniform State Laws has drafted two uniform laws,(27) and thirty-missioners four states have passed laws establishing at least some rights and responsibility of the parties to AI.(28) Sixteen states have statutorily established the rights and responsibilities of the AI donor and donee only when the donee is married.(29) The AI statutes in the remaining eighteen states purport to establish the rights and responsibilities of the AI donor and donee, even if the donee is unmarried, by declaring that except in specified circumstances, the donor is not the father of the child conceived by AI if the donor is not married to the donee.(30) Case law demonstrates, however, that none of these legislative schemes adequately protects the rights or defines the responsibilities of unmarried women who use AI.

1. Legislation Protects the Familial Expectations of Married Women Who Conceive By AI

The inadequacies of existing statutes' protection of the right of unmarried women to self-determine their families is highlighted best by comparing the law's treatment of unmarried women to the law's treatment of married women when a donor asserts paternity. When a woman using AI is married, the donor asserting paternity is essentially an unwed father seeking custody or visitation of his child. In such a scenario, a donor paternity action will fail because the married woman has two statutory shields against such a suit.

The first protection married women generally have is a statutory termination of the AI donor's rights and obligations to the child. Of the states that have enacted AI legislation, all provide that if the husband of a married woman consents to the insemination, the law will treat the husband as if he were the biological father.(31) Even if the method by which the husband gave consent does not adhere to the statutory specifications, a court will still probably find that the husband is the father under the AI statute.(32) Moreover, if the AI occurs in a state with a statute modelled after the UPA, the donor's paternity rights are terminated automatically, even if the married woman's husband does not consent to her use of AI.(33)

Even if a state has no AI statute or the AI statute does not apply, a donor paternity suit against a married woman probably still will fall because there is a strong presumption of legitimacy when a child is born to a married woman.(34) In other words, the law creates a presumption, which in some cases may not be rebutted, that a child born to a married woman is the child of her husband.(35)

The Supreme Court's ruling in Michael H. v. Gerald D.(36) demonstrates the tenacity of this presumption of legitmacy. Michael H. fathered a child through an adulterous affair with a woman married to Gerald D.(37) The mother was married to Gerald D. both when she conceived the child and when she gave birth.(38) Moreover, the mother lived with Michael for several months, allowing him to establish a relationship with the child, even while she remained married to Gerald.(39) At the time of the paternity suit, California law presumed that a child born to a woman living with her husband was the child of the wife and husband and permitted only the husband and wife to rebut the presumption.(40) The Court upheld the state law and affirmed the lower court's denial of custody and visitation to Michael, despite his biological connection to the child and clear evidence of a father-child relationship.(41) The Court noted that "[w]here ... the child is born into an extant marital family, the natural father's unique opportunity conflicts with the similarly unique opportunity of the husband of the marriage; and it is not unconstitutional the State to give categorical preference to the latter."(42)

While the result of Michael H. can be negated by state law, the Court's decision exemplifies the judiciary's eternal search for one father and one mother for each child. This search for "The Father" is premised on a judicial belief that "[i]t is in the child's best interests to have two parents whenever possible."(43) But courts do not want more than two parents. In Michael H., the plurality rejected the child's assertion that she be able to maintain filial relationships with both her biological father and her mother's husband, her legal father. The plurality's response was that: "California law, like nature itself, makes no provision for dual fatherhood."(44)

In our tale of three women, the married woman will be able to protect the integrity of her family unit from the threat of a donor's paternity suit.

2. Existing Laws Do Not Adequately Protect The Familial Expectations of

Unmarried Women Who Conceive By AI

Married women using AI are protected from donor paternity suits by generally applicable paternity presumptions supplemented by AI statutes and the courts' search for one mother and one father. This search, however, dooms the unmarried woman's prospects for familial self-determination if a donor brings a paternity action. …

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