Artificial insemination is the oldest form of assisted reproductive technology known. It is, scientifically, the process in which male gametes (spermatozoa) are collected and introduced artificially into the female genital tract for the purpose of fertilization. It was, first, developed for the breeding of cattle and horses. The method, which is now used in humans, has become a significant issue in recent years, particularly in debates revolving around surrogate motherhood in which a mother agrees to bear a child for another couple through the use of artificially inseminated sperm from the husband. As in all assisted reproductive technology, many legal issues have arisen because of the new technology. These include, but are not limited to, donor screening, ownership of the gametes, surrogacy and paternity. A sperm donor is a man who donates his sperm to a sperm bank or directly through a physician. The sperm donor may either be anonymous or known to the recipient. If the artificial insemination is done through either a sperm bank or a physician, the donor must go through a rigorous screening process in order to qualify,
donation, and then, six months later, in order to determine donor health. The use of fresh sperm is done rarely and only when the donor is an intimate partner of the recipient. New York was the first state to have regulations regarding sperm and gamete banks (see attached). Those regulations have been litigated in a series of cases known as ldant Lab v. Department of Health and Daxor v. New York State, 90 N.Y.2d 89, 681 N.E.2d 356, 659 N.Y.S.2d 189.
The ldant cases show the difficulty in drafting regulations for a rapidly changing technology. New York first required licensing of sperm banks in 1991. The plaintiff semen bank that had been in existence since 1971 and operated under a provisional license granted by the State in November of 1991. The State, after an inspection, found a series of violations which plaintiff claimed were based on regulations which were so ambiguous and unclear as to be non-existent. While ldant did finally lose in the Court of Appeals based on administrative law principles, the issues raised, such as the definition of "intimate partner" as well as issues of appropriate testing and storage fertilization.
The laws of most, if not all states, state that a sperm donor, unless he is the husband of the recipient, is not the legal father of a child resulting from artificial insemination. However, technology has caught up and surpassed even to this simple concept causing litigation. In Harnicher et ux v. University of Utah Medical Center, 962 P.2d 67, 1998, the plaintiffs were parents of triplets born after in vitro fertilization using donor sperm. They sued the defendant Medical Center for using sperm from a donor, other than the one that the couple had selected. The trial courts found no evidence of physical injury or illness to support an action for negligence and affliction of emotional distress and granted summary judgment. The plaintiffs appealed. The Appellate Court affirmed the lower court's decision. In a vigorous dissent, two of the Justices, including the Associate Chief Justice, stated "the most cursory review of the history of civilization demonstrates that the biological component of parentage has never been trivial in human affairs. The trial court and the majority appear convinced that the loss
people in this era will go to pursue biological parenthood." (citations omitted) Further, the court held that "to preserve an anonimity, very little information is shared about the donor, a great deal of faith must be placed in the hands of the doctor or clinic doing the screening or selecting the donors. This is a sacred trust that no facility offering donor insemination should take lightly." It is clear, therefore, that the courts are divided on how to decide issues regarding reproductive technology and on whether these matters should be decided on narrow legal grounds or whether in the interests of justice a more wholistic and humanistic approach should be used. In 1999, the case of "In the interest of OGM, a Child," 988 S.W.2d 473 (Court of Appeals of Texas, First District, Houston) which raised unique issues involving artificial insemination. The facts in that case are interesting. Donald McGill married Mildred Schmit in 1976. After having three children, Schmit underwent tubal ligation. In 1994, Schmit and McGill sought the services of an assisted reproductive clinic to have a fourth child through in vitro fertilization, using the ovas of Ms. Schmit and the sperm of Mr. McGill. The resulting several times. The couple executed an informed consent form wherein they agreed that in the event of divorce, they would dispose of the pre-embryos according to both of their wishes. When Schmit and McGill were divorced in 1996, the clinic was still storing four of their frozen pre-embryos. Their divorce decree did not address the disposition of the pre-embryos. Three months post divorce, McGill accompanied Schmit to the clinic where Schmit attempted the IVF procedure again. The parties claimed that they orally agreed that McGill had paternity right later to any child resulting from the procedure. However, Schmit claims McGill donated the pre-embryos to her while McGill claims he would be the father.
The IVF procedure was successful and Schmit gave birth to the baby OGM in June
1997. Three months later, McGill filed a paternity suit and Schmit answered. Both parties then moved for summary judgment on the issue of paternity. The trial court granted McGill,s motion and denied Schmit's. After a six day trial, a Texas jury appointed McGill OGM's possessory conservator. McGill is also possessory conservator
through in vitro fertilization through a frozen pre-embryo during marriage, but implanted in the biological mother after divorce.
In this case, McGill was named as the father of the child on the birth certificate. He had also executed a statement of paternity pursuant to Texas law. Schmit held that the transfer of the embryo to her uterus after a divorce is analogous to an artificial sperm transfer from a donor since she and McGill no longer had any legal relationship. As a result of that, Schmit contends that there can be no presumption of paternity and McGill was not OGM 's father. The court then looked at several of the prior assisted
conception cases, especially those involving sperm donors. The first is In the Interest of RC, 775 P.2d 27 (Colorado, 1989). In RC, a semen donor who was never married to the child's mother sought a declaration of paternity to a child conceived through artificial insemination. The court held that a statute distinguishing rights to children born through artificial insemination does not apply to a known semen donor; and the parties' agreement and subsequent conduct is relevant in determining the parental rights. In
sperm, then divorced her husband and sought a maternity adjudication. The court found her to be the natural mother, even thought the ova was donated. Finally, in Johnson v. Calvert, 5 Cal. 4'h 84, 851 P.2d 776 (1993) the husband and wife sought parental rights to a child born through a surrogate mother. The court found in that case that a surrogate mother was not the natural mother. In the OGM case, however, the court held that none of these cases were controlling and the granting of summary judgment in McGill's favor was appropriate. Clearly, this is an area that is limited only by the fertility of the human imagination, if not of the human body. The law is playing a catch up game with technology. It is apparent that a new definition of parenthood and of family is going to have to be made by the courts before a cohesive body of law is possible in this area.
