Marginalizing Adoption Through the Regulation of Assisted Reproduction

AuthorRichard F. Storrow
PositionProfessor of Law, Pennsylvania State University. J.D. 1993, Columbia; M.A. 1989, Columbia; B.A. 1987, Miami University.
Pages479-516

Page 479

    Richard F. Storrow : I thank Pennsylvania State University for the research support that made the preparation of this Article possible, the editorial staff of the Capital University Law Review, and Carlos Ball for helpful comments on a previous draft.
Introduction

At the second annual Wells Conference on Adoption Law, I was asked to comment on Professor Lynn Wardle's treatment of the topic "What does the rest of the world say? How do different nations and states determine when and if adoption doctrine applies to assisted reproduction related transactions?"1 This was a broad comparative law question about whether the legal treatment of assisted reproduction in other countries relies on adoption law or policy. It was a question about what legal hurdles a vast worldwide population of individuals and couples who seek access to assisted reproduction might face in the course of their quest to create a family.

Lynn Wardle has recently devoted the bulk of his scholarly energy to condemning gay and lesbian parents.2 Wardle believes they are sexually Page 480 unrestrained egoists who break the law and harm children and society.3 He urges policymakers to block efforts by gays and lesbians to become parents either by adoption or by assisted reproduction.4 He also advocates severing the relationship between gay and lesbian parents and their children whenever possible, because they are not "true" families.5 At the Wells Conference, Wardle relied heavily on these views.6 He largely ignored the broad comparative question he was asked to address to reflect at length on the debate over adoption by gays and lesbians and to make very general statements about the regulation of assisted reproduction in the United States.7He argued that only heterosexual married couples who are able to procreate with their own gametes and intend to raise the resulting children should have access to assisted reproduction.8 Gays, lesbians, and single individuals, he argued, should not have access to reproductive technology.9 In support of these propositions, Wardle made numerous misstatements of fact and law, made critical omissions, submitted erroneous quotations, and presented misleading translations of foreign-language documents. More disturbing than those flaws, however, was Wardle's implication that adoption is a degraded form of parenthood that, in all but the rarest of cases, prevents children from reaching their highest potential.

In this Comment on Wardle's remarks, I will discuss the flaws and fabrications in his argument. I will also make two major points: (1) the way a society views adoption has a strong influence on the forms of assisted reproduction that the society will permit, and (2) countries with strong commitments to both individual autonomy and child welfare reject the notion that the infertile may not have medical assistance to reproduce unless they satisfy the standards required of adoptive parents. In support of these points, I Page 481 will in Part I show how adoption plays a role in discussions of what law and policy should govern assisted reproduction. Part II will then explore the role of heterosexuality and marriage in the law of assisted reproduction, and Part III will comment on how Islam's restrictions on assisted reproduction stem not from its disapproval of gay and lesbian parents, but instead from its religious rejection of adoption and its cultural rejection of childless marriages. Part IV reflects on the law of France, where restrictions on assisted reproduction and adoption enshrine procreative parenthood in a way that effectively casts adoption as a substandard form of parenthood. Part IV also criticizes a recent proposal to codify a marriage preference in the adoption of children from foster care and describes recent developments in the United Kingdom, Australia, and New Zealand that reject the best interests of the child standard as a proper means of restricting access to assisted reproduction.10

I Assisted Reproduction and the Adoption Model

Because adoption is substantially older than reproduction-assisting technologies, regulation of adoption is much more established.11 An issue that frequently arises in discussions about whether and how to regulate assisted reproduction, then, is how much of the regulatory framework should be borrowed from already existing and familiar adoption principles. As a general matter, the questions of whether and how adoption principles should apply in the context of assisted reproduction arise at three specific junctures in the course of and subsequent to one's resort to assisted reproduction. The first of these is when an individual or a couple seeks access to reproduction assisted technologies. The second is the moment of the initial legal determination of the child's parentage. The final juncture is when the child asserts her right to know either the identity of or other facts about her biological progenitors. The issues that arise at these three junctures are by no means discrete but may overlap to a certain degree. For example, beliefs about the scope of a child's right to know or to be raised by her genetic progenitors might be used as the basis for legislation restricting access to certain forms of assisted reproduction. Beliefs about the parenting ability of those who resort to assisted reproduction may influence who the law is Page 482 willing to recognize as a parent. Wardle's treatment of the topic demonstrated how these issues often inform one another. His desire to limit access to assisted reproduction stems directly from the conviction that a child has the right to know and be reared by her biological parents, and that a child's biological progenitors are always the ideal persons to rear her, particularly if they are married to each other.12

The discussion in the United States concerning if and how assisted reproduction should be regulated as a socio-legal matter usually arises in disputes over parentage determination and, as in the rest of the world, often invites comparisons with adoption, a nonprocreative quest for parenthood that falls outside the scope of constitutionally protected procreation.13Comparisons with adoption are especially salient where the necessary reproductive assistance entails the participation of gamete donors or gestational surrogates. It is argued that as these forms of parenthood involve the legal recognition of intentional parenthood,14 adoption is the appropriate template for legal determinations of parentage.15 Other social policy questions triggered by both adoption and heterologous assisted reproduction are the value of secrecy over transparency,16 the commodification of children,17 and the exploitation of women.18 Finally, both surrogacy and adoption trigger deeply ingrained suspicions and fears about mothers who "reject" their children.19 Page 483

Not everyone is comfortable situating heterologous assisted reproduction within an adoption framework.20 Indeed, there is much to distinguish assisted reproduction from adoption.21 The most salient difference is that adoption begins after a child or fetus already exists; assisted reproduction, however, finds intending parents themselves setting the reproductive process in motion.22 As a child-focused service, adoption requires the would-be parents to demonstrate parental fitness and the child's best interests to the satisfaction of the court. By contrast, assisted reproduction, an adult-focused service, requires at most a showing of fitness to parent.23 Finally, adoption and assisted reproduction are not equally valued, given the nearly overwhelming desire for and bias in favor of genetically-related children.24 Thus, the possibility of a genetic tie to a child born through assisted reproduction may make that choice appear more understandable and legitimate in a society that extols consanguineous relationships and regards nonconsanguineous relationships with suspicion, if not derision.25 Where genetic contributions of third parties are not required, the argument from adoption is less weighty if one believes that genetic reproduction using one's own gametes is the sum and substance of procreative autonomy.26 In exercising their procreative liberty, coital progenitors benefit from a presumption of fitness that frees them to exercise the parental prerogatives that stem from their act of procreation.27 Whether noncoital reproduction is sufficiently procreative to Page 484 command similar constitutional protection remains the subject of considerable debate. There has been no pronouncement binding on all states on this issue,28 and the regulation across and within jurisdictions in the United States is far from uniform or comprehensive.29

Whereas the socio-legal regulation of assisted reproduction in the United States is largely limited to parentage determination, some countries have wrestled with whether adoption law should guide the formation of policy on questions of identity disclosure and compensation in assisted reproduction. Canada, for example, chose to ban compensation for gametes or gestation;30the United Kingdom chose to ban anonymity.31 Both stances were informed by understandings of what is best for children, a standard prominent in the law of adoption in both jurisdictions. Although some jurisdictions in the United States have taken this direction in matters of adoption,32 discussions about children's "right" to know the identities of the contributors of their genetics remains largely academic.33

Finally, there is the issue of whether adoption law should guide the question of who should be allowed access to assisted reproduction and under what conditions. The question...

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