Artificial Insemination

ARTIFICIAL INSEMINATION

The process by which a woman is medically impregnated using semen from her husband or from a third-party donor.

Artificial insemination is employed in cases of infertility or impotence, or as a means by which an unmarried woman may become pregnant. The procedure, which has been used since the 1940s, involves injecting collected semen into the woman's uterus and is performed under a physician's supervision.

Artificial insemination raises a number of legal concerns. Most states' laws provide that a child born as a result of artificial insemination using the husband's sperm, referred to as AIH, is presumed to be the husband's legal child. When a child is born after artificial insemination using the sperm of a third-party donor, referred to as AID, the law is less clear. Some states stipulate that the child is presumed to be the legal child of the mother and her husband, whereas others leave open the possibility that the child could be declared illegitimate.

Artificial insemination has grown in popularity as infertility becomes more prevalent and as more women opt to become single mothers. Eighty thousand such procedures using donor sperm are performed each year, resulting in the births of thirty thousand babies. By 1990 artificial insemination was a $164 million industry involving eleven thousand private physicians, four hundred sperm banks, and more than two hundred fertility centers.

The practice of artificial insemination is largely unregulated, and secrecy surrounding the identity of donors and recipients is the norm. Surveys of parents indicate that most do not plan to tell their children the circumstances of their births. This raises ethical questions about the right of an individual to be informed about his or her heritage. People who inadvertently discover they were conceived through artificial insemination often experience distress and feelings of confused identity. Many doctors compound the problem by failing to keep records on the identities and medical histories of donors.

The legal minefield created by artificial insemination continues to erupt with new and unprecedented issues. In 1990, Julia Skolnick sued a fertility clinic and a sperm bank for negligence and medical malpractice, charging that they mistakenly substituted another man's sperm for that of her late husband. The woman, who is white, gave birth to a child with African American features, and DNA analysis confirmed that her husband, who was also white, could not have been the child's father. In another case, Junior Lewis Davis sued to prevent his ex-wife, Mary Sue Davis Stowe, from using or donating fertilized embryos the couple had frozen for later use. The Tennessee Supreme Court held that individuals have "procreational autonomy" and have the right to choose whether to have a child (Davis v. Davis, 842 S.W.2d 588 (Tenn. June 1992). Arthur L. Caplan, former director of the Center for Biomedical Ethics at the University of Minnesota, commented, "In this case, the court said that a man cannot be made to become a parent against his will." The Davis case raises the question of the right of a sperm donor to prevent the use of his sperm by specific individuals.

Serious health questions also surround the issue of artificial insemination. AIDS, hepatitis, and other infectious diseases pose risks to women undergoing the procedure and their potential children. Although the American Fertility Society recommends that donors be tested for infectious diseases, the guidelines are not binding. In fact, some doctors merely request that donors answer questions about their health history and sex life, and only a handful of states require testing. This casual approach to donor screening can lead to disaster. In 1994, Mary Orsak, of Downey, California, sued the Tyler Medical Clinic, in Westwood, California, for negligence when she discovered she was HIV-positive as a result of artificial insemination with donor sperm. In at least six other cases, HIV transmission through artificial insemination has been confirmed.

Other legal pitfalls open up as technology makes artificial insemination more sophisticated and more available. Now that sperm can be frozen for future use, a woman can be impregnated at any time, even after her husband's death. In 1990, Nancy Hart and Edward Hart, of Covington, Louisiana, anticipating that Edward might not survive his bout with cancer and knowing that chemotherapy might leave him sterile, decided to place a sample of his sperm in a New Orleans sperm bank. Edward died in June 1990. Three months later, Nancy underwent artificial insemination using his sperm, and on June 4, 1991, their daughter Judith was born. Under Louisiana law (L.S.A.C.C. Art. 185), the state would not acknowledge Edward as the child's father because she had been born more than three hundred days after his death. As a result, Nancy was unable to receive social security survivors benefits for her daughter. She sued both the state of Louisiana and the federal government. In June 1995 Administrative Law Judge Elving Torres ruled that the Social Security Administration (SSA) must pay Judith a $10,000 lump sum and $700 per month in survivor's benefits. According to Torres, the dna evidence presented to him proved that Judith is Nancy and Edward Hart's child.

Medical technology now allows recipients of artificial insemination to select the sex of their offspring, which raises still more ethical questions. Some religions condemn this practice as unnatural, although other theologians disagree. Some commentators have even suggested that it is unethical and exploitative to offer expensive, difficult, painful, and frustrating fertility procedures to desperate people when there may be little chance that a successful pregnancy will result.

The legal, ethical, and medical quagmires created by artificial insemination have not deterred thousands of couples and single women from seeking the procedure. Artificial insemination is sometimes the best, if not the only, solution for a person determined to achieve pregnancy.

further readings

Bernstein, Gaia. 2002. "The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination." Washington Law Review 77 (October): 1035–120.

Goldstein, Karen L., and Caryn H. Okinaga. 2002. "Assisted Reproductive Technology." Georgetown Journal of Gender and the Law 3 (spring): 409–37.

Gunning, Jennifer, and Helen Szoke, eds. 2002. The Regulation of Assisted Reproductive Technology. Burlington, Vt.: Ashgate.

Ross, Jane O. 1999. "A Legal Analysis of Parenthood by Choice, Not Chance." Texas Journal of Women and the Law 9 (fall): 29–52.

cross-references

Family Law; Illegitimacy; Parent and Child; Reproduction.