Global perspective on procreation and parentage by assisted reproduction

• Author: Lynn D. Wardle
• Position: Bruce C. Hafen Professor of Law, J. Reuben Clark Law School, Brigham Young University.
• Pages: 413-478

Page 413

The valuable research assistance of several research assistants including Zachary Starr (class of 2007) is gratefully acknowledged. This is based on a paper presented April 7, 2006, at the Capital University Law School Wells Conference on Defrosting the Debate: Analyzing the Nexus Between Adoption & Frozen Pre-Embryos, Sponsored by the National Center for Adoption Law & Policy and the Capital University Law Review.

I Introduction: Art, Partner Adoption, and the Right to a Child

Comparative family law is a fascinating area of investigation, for we may learn much about our own legal system, procedures, and substantive family law policies and about how they might be improved, as we hold them up beside the family laws of other nations, societies, and cultures.¹The study, discussion, and analysis of laws and policies regulating and cases deciding issues of assisted reproductive technology (ART) has become very popular in the United States recently.² This symposium issue Page 414 of the Capital University Law Review will certainly find a receptive audience.

However, the comparative study of family law is also replete with the opportunity and potential for serious misperception, misinterpretation, and misunderstanding. It is very tempting to take foreign nations' laws and policies out of context or to interpret them in light of the assumptions underlying our own legal system, and thereby miss important dimensions of those laws that are hidden in the shadows of the differences in the procedural, structural, substantive, and cultural contexts unique to the foreign legal system. Our very approach, organization, categorization, definition, and questions we ask may reflect assumptions about the law that do not fully apply to-or that even mischaracterize-the issue as it would be viewed from the perspective of persons familiar with or living under the foreign legal system. Even language presents a problem, as English is not the language of the law in most of the 193 sovereign nations of the world.³

Mary Patricia Byrn, The Use of Prebirth Parentage Orders in Surrogacy Proceedings, 39 FAM. L. Q. 633 (2005) (asserting that prebirth parentage orders are potentially useful in surrogacy relationships if no adoption-like proceedings are necessary to give affect to the parties' intent); Susan B. Apel, Cryopreserved Embryos: A Response to "Forced Parenthood" and the Role of Intent, 39 FAM. L. Q. 663 (2005) (discussing the evolving trend of interpreting existing laws, particularly the Uniform Parentage Act, to deny children of cryopreserved embryos from divorced parents the right to a "legal father" and thus depriving these children of otherwise typical financial and economic support); Courtney G. Joslin, The Legal Parentage of Children Born to Same-Sex Couples: Developments in the Law, 39 FAM. L. Q. 683 (2005) (highlighting the treatment of ART children born into same- sex households in recent cases); Cyrene Grothaus-Day, Criminal Conception: Behind the White Coat, 39 FAM. L. Q. 707 (2005) (revealing the "white collar crimes" associated with ART providers in derogation of regulations and rules established by governments); David Adamson, Regulation of Assisted Reproductive Technologies in the United States, 39 FAM. Page 415

Thus, we begin with a very large caveat about the limits of our ability to understand fully and translate accurately into our terminology the rules and regulations of foreign legal systems concerning ART and adoption of children of ART.

One common source of misperception in the comparative study of family law is use of inapposite categories or distinctions. Thus, it is important to recognize and distinguish between two major categories of usage of ART which encompass a distinction around which the Wells Conference (Conference) was organized (whether intentionally or unintentionally). One category involved the use of assisted reproduction by infertile, married couples to produce desired children of or for the marriage. The other category involved the use of ART by unmarried individuals, couples, or groups to produce children who will be raised outside of a marital family, without a mother and a father. Whether deliberately or by accident, the use of that distinction in this Conference is perceptive, for the line that distinguishes those two categories constitutes a "fault line" of the social earthquake that is shaking most nations today concerning the reconceptualization of basic, nuclear family relations and a "battle line" in the culture wars that are raging not only in America, but around the world. We will find that this distinction explains the major differences in the regulation of ART by the nations of the world.

One additional caveat: this is an area of law that is changing rapidly. One of the best compilations I found reporting on the practice and regulation of ART around the world was produced by the World Health Organization in 2002,⁴ yet many of the reports have been rendered outdated by the passage of legislation and adoption of administrative regulations since that report.⁵ Likewise, the International Lesbian and Gay Page 416 Association (ILGA) has provided some very helpful reports,⁶ but some of its material that is only a few years old proves to be outdated.

This Article reviews the global status of ART, investigates partner adoption by unmarried partners, especially by gay and lesbian partners of biological parents, and attempts to show that children deserve to be raised by their mother and father, whenever possible. It begins with a review of the current status of the law in the United States regulating ART and adoption of children by partners and couples (hereinafter lesbigay adoption). It then considers two values unique to the United States that may partially explain the difference in American law regarding ART and lesbigay adoption and considers one value that represents a universal norm, even if only given lip service in some places and times. The Article concludes with some reflections about the need to give priority to the needs and welfare of children in this rapidly evolving area of law.

II Comparative Law of Art and Lesbigay Adoption

A American Law of ART and Lesbigay Adoption in a Nutshell

It would not be accurate to say that there is no regulation of ART in the United States of America. As one infertility expert alleged in an article published in Family Law Quarterly recently: "[T]here is significant regulation and oversight regarding ART in the United States."⁷ The federal laws and regulations applicable to infertility clinics and ART practices include: (1) the Federal Clinical Laboratory Improvement Act of 1988,⁸ which governs "endocrinology and andrology laboratories that provide hormonal assays and semen analysis tests, respectively, for IVF";⁹(2) federal research regulations promulgated by, inter alia, the National Institutes of Health (NIH);¹⁰ (3) Food and Drug Administration (FDA) regulations applicable to somatic cell nuclear transfer;¹¹ (4) Federal Trade Page 417 Commission (FTC) regulations that have resulted in regulatory sanctions of infertility clinics for improper advertising;¹² (5) payment regulations of the Centers for Medicare and Medicaid Services that apply to payments made to health care providers for services covered by Medicare and Medicaid;¹³ (6) Public Health Service regulations that forbid human embryo research by those federally funded programs;¹⁴ and (7) the Department of Health and Human Services "has multiple policies that affect ART genetic testing and genetic policy."¹⁵

At the state level, Dr. Adamson notes that there are many indirect regulations of ART. These include regulations of the practice of medicine, state licensing of hospitals, licensing of fertility laboratories in some states (like California and New York), laws regulating informed consent, laws regulating sexually transmitted infection screening, and medical privacy laws, among other things.¹⁶ However, most of these regulations are indirect.¹⁷ The regulations or similar ones apply to all kinds of medical Page 418 practices, procedures, clinics, and laboratories in the United States.¹⁸ They exist to maintain a quality of health care in the United States that is unequaled in, and is the envy of, people living in all other nations in the world. But they are not designed to address the issues, problems, or context of assisted reproduction in particular.¹⁹ Some indirect regulation also results from litigation involving ART procedures, clinics, providers, and patients.²⁰ Civil liability for damages for breach of contract, tort, and civil rights violations and establishment of legal rules and presumptions exert some influence on the practices and procedures of ART.²¹ Likewise, self-regulation by professional...