The new UPA goes well beyond that narrow view; it governs the parentage issues in all cases in which the birth mother is also the woman who intends to parent the child. It also ensures that if the mother is a married woman, her husband will be the father of the child if he gives his consent to assisted reproduction by his wife, regardless of which aspect of ART is utilized. UPA (1973) § 5(b) specified that a male donor would not be considered the father of a child born of artificial insemination if the sperm was provided to a licensed physician for use in artificial insemination of a married woman other than the donor's wife. The new Act does not continue the requirement that the donor provide the sperm to a licensed physician. Further, this section of the new UPA does not limit a donor's statutory exemption from becoming a legal parent of a child resulting from ART to a situation in which the donor provides sperm for assisted reproduction by a married woman. This requirement is not realistic in light of present ART practices and the constitutional protections of the procreative rights of unmarried as well as married women. Consequently, this section shields all donors, whether of sperm or eggs, (§ 102 (8), supra), from parenthood in all situations in which either a married woman or a single woman conceives a child through ART with the intent to be the child's parent, either by herself or with a man, as provided in sections 703 and 704.

If a married woman bears a child of assisted reproduction using a donor's sperm, the donor will not be the father in any event. Her husband will be the father unless and until the husband's lack of consent to the assisted reproduction is proven within two years of his learning of the birth, see § 705, infra. This provides certainty of nonparentage for prospective donors.

The comment to now-withdrawn USCACA § 4(a) states that "nonparenthood is also provided for those donors who provide sperm for assisted reproduction by unmarried women." Under those circumstances--called a "relatively rare situation" in the 1988 comment--"the child would have no legally recognized father." This result is retained in the new UPA, although the frequency of unmarried women using assisted reproduction appears to have grown significantly since 1988.

Maine Comment

This section shields all donors, whether of sperm or eggs, from parenthood in all situations in which either a married woman or a single woman conceives a child through ART with the intent