CHILD OF ASSISTED REPRODUCTION

Comment

During the last thirty years, medical science has developed a wide array of assisted reproductive technology, often referred to as ART, which have enabled childless individuals and couples to become parents. Thousands of children are born in the United States each year as the result of ART. If a married couple uses their own eggs and sperm to conceive a child born to the wife, the parentage of the child is straightforward. The wife is the mother--by gestation and genetics, the husband is the father--by genetics and presumption. And, insofar as the Uniform Parentage Act is concerned, neither parent fits the definition of a "donor."

Current state laws and practices are not so straightforward, however. If a woman gives birth to a child conceived using sperm from a man other than her husband, she is the mother and her husband, if any, is the presumed father. However, the man who provided the sperm might assert his biological paternity, or the husband might seek to rebut the martial presumption of paternity by proving through genetic testing that he is not the genetic father. As was the case in UPA (1973), it is necessary for the new Act to clarify definitively the parentage of a child born under these circumstances.

Similarly, assisted reproduction may involve the eggs from a woman other than the mother--perhaps using the intended father's sperm, perhaps not. In either event, the new Act makes a policy decision to clearly exclude the egg donor from claiming maternity. Theoretically, it is even possible that absent appropriate legislation the mother could attempt to deny maternity based on her lack of genetic relationship.

Finally, many couples employ a common ART procedure that combines sperm and eggs to form a pre-zygote that is then frozen for future use. If the couple later divorces, or one of them dies, absent legislation there are no clear rules for determining the parentage of a child resulting from a pre-zygote implanted after divorce or after the death of the would-be father. Disposition of such pre-zygotes, or even issues of their "ownership," create not only broad publicity, but also are problems on which courts need guidance.

§1961.__Scope of subchapter