Procreation through art: why the adoption process should not apply

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Procreation through art: why the adoption process should not apply

My appreciation to the members of the Capital University Law Review for inviting me to participate in this stimulating symposium.

The Supreme Court has long recognized a "private realm of family life which the state cannot enter."1 For me, in evaluating whether assisted reproductive technology (ART) should be governed by adoption principles, the question is whether assisted reproduction should be viewed as an extension of family and procreative privacy or whether assisted reproduction bears greater similarity to adoption and should be subjected to a more extensive and invasive legal process. More specifically, should an intended parent of a child born through use of sperm or egg donation be obligated to adopt the child? Must parties adopt a child whose birth they intended through use of a surrogate? My short answer is "no." Assisted reproduction falls closer to the procreation end of the spectrum than the adoption end-parties intentionally use this technology to have a child of their own. As such, ART should fall within the constitutional purview of protected family privacy and should not be subjected to the greater regulation and screening of adoption law.

Rather than having to use the adoptive process, parties should instead be able to rely on the Uniform Parentage Act (UPA)2 or relevant state parentage laws to establish their parentage at the child's birth. Waiting six or more months to adopt a child who was born through the emotional and financial efforts of intended parents seems counterintuitive. The UPA does not in all instances provide complete privacy for families and may require some investigative and legal process,...

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