Foreword: Assisted Reproductive Technology and the Law

This foreword introduces Issue 2: Assisted Reproductive Technology and the Law of the 35th Volume of the William Mitchell Law Review. It begins by outlining the author\u27s personal experience with ART, and contrasts her reasoning for using ART with the traditional need for ART. Finally, it lists some of the many legal questions yet to be conclusively answered

From Right to Wrong: A Critique of the 2000 Uniform Parentage Act

In 1973, the National Conference of Commissioners on Uniform State Laws (the Conference) proposed a Uniform Parentage Act (UPA) that radically changed how parentage was determined in the United States. Prior to 1973, the parentage laws of most states failed to identify two legal parents for thousands of children merely because their parents were not married. These illegitimate children were considered a child of no one under the law and were denied the significant emotional, financial, and legal benefits of having two legal parents. By the early 1970s, however, the conference recognized that such treatment of children was becoming scientifically, socially and legally untenable and took the revolutionary step of promulgating an act that identified two legal parents for both marital and nonmarital children. This choice, though radical at the time, demonstrated the progressive thinking of the Conference and led to similar changes in the parentage laws of every state in the country. In 2000, the Conference promulgated a new Uniform Parentage Act that includes broad provisions for determining parentage of children conceived through assisted reproductive technologies (ART). Unlike the 1973 UPA, which identified two legal parents for all children conceived through sexual intercourse, the 2000 UPA does not identify two legal parents for all children conceived via ART. Instead, the 2000 UPA leaves the thousands of children conceived via ART and born to same-sex couples in the emotionally, financially, and legally vulnerable position of having only one legal parent. This article examines the arguments that shaped the 1973 UPA and concludes the same arguments should have resulted in a more progressive UPA in 2000 that identified two legal parents for the thousands of children conceived through ART and born to same sex couples

Same-Sex Marriage in South Africa: A Constitutional Possibility

The South African Constitution is unlike any other in the world in terms of its inclusion of sexual orientation. The Constitutional Court has taken a clear position in interpreting the Bill of Rights and implementing its goal of protecting individuals and groups from discrimination. The Sodomy, Immigration, and Spousal Benefits Cases demonstrate that the Constitutional Court recognizes that homosexuals have a Constitutional right to equality, human dignity, and privacy, and that the Court is willing to protect gays and lesbians from discrimination and social prejudice.Section I of this Note will discuss some of the key provisions of the South African Bill of Rights that will effect the Court’s consideration of same-sex marriage. Gays and lesbians in South Africa have strong textual arguments for the recognition of same-sex marriage based on the explicit language in the Constitution protecting sexual orientation. Section II will review the development of the Constitutional Court’s Bill of Rights jurisprudence. The Constitutional Court has addressed sodomy, immigration, spousal benefits, and adoption under the sexual orientation provision and has outlined a clear analytical framework under the right to equality. Section III will consider same-sex marriage within the framework of the South African Constitution and the jurisprudence of the Constitutional Court to determine how the Court should resolve the issue of whether same-sex marriage should be recognized as a constitutional right. This section will consider the textual and precedential arguments for same-sex marriage, as well as some of the social arguments against recognizing full marriage rights for gays and lesbians. This Note concludes that denying homosexual couples the right to marry is unconstitutional under the South African Constitution

From Right to Wrong: A Critique of the 2000 Uniform Parentage Act

In 1973, the National Conference of Commissioners on Uniform State Laws (the Conference) proposed a Uniform Parentage Act (UPA) that radically changed how parentage was determined in the United States. Prior to 1973, the parentage laws of most states failed to identify two legal parents for thousands of children merely because their parents were not married. These illegitimate children were considered a child of no one under the law and were denied the significant emotional, financial, and legal benefits of having two legal parents. By the early 1970s, however, the conference recognized that such treatment of children was becoming scientifically, socially and legally untenable and took the revolutionary step of promulgating an act that identified two legal parents for both marital and nonmarital children. This choice, though radical at the time, demonstrated the progressive thinking of the Conference and led to similar changes in the parentage laws of every state in the country. In 2000, the Conference promulgated a new Uniform Parentage Act that includes broad provisions for determining parentage of children conceived through assisted reproductive technologies (ART). Unlike the 1973 UPA, which identified two legal parents for all children conceived through sexual intercourse, the 2000 UPA does not identify two legal parents for all children conceived via ART. Instead, the 2000 UPA leaves the thousands of children conceived via ART and born to same-sex couples in the emotionally, financially, and legally vulnerable position of having only one legal parent. This article examines the arguments that shaped the 1973 UPA and concludes the same arguments should have resulted in a more progressive UPA in 2000 that identified two legal parents for the thousands of children conceived through ART and born to same sex couples

Anonymously Provided Sperm and the Constitution

Obtaining sperm to use in Assisted Reproductive Technology (ART) is relatively simple. Hospitals, clinics, and sperm banks throughout the United States are in the business of selling sperm from literally thousands of men. Once a man is approved to provide sperm, he contracts with the sperm bank to supply sperm for a specified period of time and designates himself as either an anonymous or open-identity sperm provider. When a man chooses to provide his sperm anonymously, both the sperm provider and intended parents agree to complete anonymity – that is, the sperm provider can never know the parents or any offspring, and vice versa. Anonymous sperm providers make up the vast majority of men selling sperm.Several commentators have argued that the use of anonymously provided sperm causes significant harm to provider-conceived children. Concerns asserted on behalf of provider-conceived children include: that provider-conceived children suffer emotional and psychological harm as a result of not knowing the identity of their genetic fathers; that the use of anonymously provided sperm violates a child’s right to know her genetic parents and will lead to unintended romantic relationships between genetic half-siblings; and that provider-conceived offspring are unable to adequately monitor their health and treat medical conditions because they are denied access to genetic information about their sperm provider. In response, several academics have called for a ban on anonymously provided sperm and a mandate that parents disclose to their children that they were conceived using purchased sperm.This article takes issue with both of these proposed regulations for two reasons. First, a ban on anonymously provided sperm and a requirement that parents inform their provider-conceived children of the details of their conception raise significant constitutional issues. For such legislation to be constitutional, it would presuppose that the fundamental rights to procreate and to raise one’s child are less robust for persons who conceive via ART than they are for persons who conceive through sexual reproduction. Currently, commentators advocating for a ban on anonymously provided sperm implicitly presume these lesser rights. Second, as a policy matter, such regulations are unnecessarily broad. A more tailored legislative response in the form of a national registry would address the legitimate concerns over the use of anonymously provided sperm without threatening the fundamental rights of ART parents

Anonymously Provided Sperm and the Constitution

Obtaining sperm to use in Assisted Reproductive Technology (ART) is relatively simple. Hospitals, clinics, and sperm banks throughout the United States are in the business of selling sperm from literally thousands of men. Once a man is approved to provide sperm, he contracts with the sperm bank to supply sperm for a specified period of time and designates himself as either an anonymous or open-identity sperm provider. When a man chooses to provide his sperm anonymously, both the sperm provider and intended parents agree to complete anonymity – that is, the sperm provider can never know the parents or any offspring, and vice versa. Anonymous sperm providers make up the vast majority of men selling sperm.Several commentators have argued that the use of anonymously provided sperm causes significant harm to provider-conceived children. Concerns asserted on behalf of provider-conceived children include: that provider-conceived children suffer emotional and psychological harm as a result of not knowing the identity of their genetic fathers; that the use of anonymously provided sperm violates a child’s right to know her genetic parents and will lead to unintended romantic relationships between genetic half-siblings; and that provider-conceived offspring are unable to adequately monitor their health and treat medical conditions because they are denied access to genetic information about their sperm provider. In response, several academics have called for a ban on anonymously provided sperm and a mandate that parents disclose to their children that they were conceived using purchased sperm.This article takes issue with both of these proposed regulations for two reasons. First, a ban on anonymously provided sperm and a requirement that parents inform their provider-conceived children of the details of their conception raise significant constitutional issues. For such legislation to be constitutional, it would presuppose that the fundamental rights to procreate and to raise one’s child are less robust for persons who conceive via ART than they are for persons who conceive through sexual reproduction. Currently, commentators advocating for a ban on anonymously provided sperm implicitly presume these lesser rights. Second, as a policy matter, such regulations are unnecessarily broad. A more tailored legislative response in the form of a national registry would address the legitimate concerns over the use of anonymously provided sperm without threatening the fundamental rights of ART parents

An Empirical Analysis of the Use of the Intent Test to Determine Parentage in Assisted Reproductive Technology Cases

States have been slow to adopt model acts regarding assisted reproductive technology (ART), or to draft ART legislation of their own, leaving most parents of ART children without a clear path to obtain legal parentage. As a result, when a child conceived via ART is born, the adults involved must turn to the courts to make a determination as to legal parentage. These courts have used a variety of approaches to determine legal parentage in ART cases, which along with the inherent discretion involved in judicial decisions absent clear precedent or statute has led to unpredictable, and sometimes inequitable, findings regarding parentage of ART children. This Article seeks to uncover what bases courts have used to determine parentage of ART children and whether courts have, perhaps unwittingly, developed a consensus as to how to best determine parentage of children conceived via ART. This Article provides the results of a first-of-its-kind study of every case on Westlaw addressing parentage of ART children. Each case was coded and analyzed based on what test the court used to determine legal parentage of an ART child and what factors of each case were statistically significant in making that determination. The empirical evidence demonstrates two facts: (1) courts have used five different tests to determine parentage of ART children; and (2) regardless of the test used by the court, in over 74% of the cases, the outcome of the case was the same as if the intent test had been used. Part II of this Article describes the methodology of the study, including how the relevant cases were identified and how those cases were coded and analyzed. Part III identifies the various tests courts have used to determine parentage in ART cases. This Part also describes each test and provides examples of how courts have applied each test. Finally, Part IV presents the data, noting which aspects of the cases were statistically relevant to the courts\u27 determinations and demonstrating courts\u27 tendencies to vest legal parentage in the intended parents, even if the court does not apply the intent test by name

When Your Body is Your Business

Surrogacy in the United States is a multi-million dollar industry in which well paid professionals seek out highly specialized women to fulfill the difficult job of being a surrogate. Surrogates enter lengthy contracts in which they agree, in intricate detail, to provide a service for significant compensation - surrogates are paid well over $22 million dollars a year. This article argues that surrogates are also professionals in this for-profit industry and are required to report surrogacy compensation as income. As a corollary, surrogates may deduct most of their surrogacy related expenses as business deductions. Being a surrogate is a highly personal service and the expenses the surrogate incurs - such as for maternity clothes or medical care - are typically seen as nondeductible personal ones, but when your body is your business, the personal is business

The Use of Prebirth Parentage Orders in Surrogacy Proceedings

Prebirth parentage orders are often sought by parties to surrogacy agreements to formalize the intent of the parties to the agreement before the child is born. Such orders declare the intended parents to be the legal parents of the child. This article discusses the benefits of such orders, as well as the difficulties in obtaining them. The availability and efficacy of prebirth parentage orders depends on many factors including the type of surrogacy arrangement, the state law that governs the proceeding, and whether the parties are in unanimous agreement. This article analyzes the various factors which impact whether obtaining a prebirth parentage order is possible and whether such an order is enforceable in several representative jurisdictions in the United States

The Use of Prebirth Parentage Orders in Surrogacy Proceedings

Prebirth parentage orders are often sought by parties to surrogacy agreements to formalize the intent of the parties to the agreement before the child is born. Such orders declare the intended parents to be the legal parents of the child. This article discusses the benefits of such orders, as well as the difficulties in obtaining them. The availability and efficacy of prebirth parentage orders depends on many factors including the type of surrogacy arrangement, the state law that governs the proceeding, and whether the parties are in unanimous agreement. This article analyzes the various factors which impact whether obtaining a prebirth parentage order is possible and whether such an order is enforceable in several representative jurisdictions in the United States