Vol. 8, No. 5, Pg. 26. Assisted Reproductive Technologies: South Carolina Law in the Embryonic Stage.

• Author: By James Fletcher Thompson

South Carolina Lawyer

1997.

Vol. 8, No. 5, Pg. 26.

Assisted Reproductive Technologies: South Carolina Law in the Embryonic Stage

26ASSISTED REPRODUCTIVE TECHNOLOGIES: South Carolina Law in the Embryonic StageBy James Fletcher ThompsonA lawyer's value to the client rests on his or her ability to gauge legal risks and predict likely outcomes of human endeavors. In no area of law practice is this role as a counselor more essential, the trust

27placed in the lawyer more complete and the effects of decisions more life-altering than when a lawyer advises clients on their procreative rights. When advising the client regarding the intimate matters of procreative rights, a lawyer must base his or her advice on supposition, conjuncture, ad hoc solutions and a contradictory statutory framework that was never intended to govern reproductive technologies.

Unfortunately, while the formulation of public policy is properly a legislative function, the South Carolina General Assembly has never passed legislation purposefully directed at reproductive technologies. Instead, the bench and bar have devised procedural mechanisms by which cases can be heard and also determine the legal rights of the participants.

The need for legislation is pressing; approximately 20 percent of the population who attempt to start a family cannot do so without medical intervention. It is estimated that well over one billion dollars is spent each year in the United States to combat infertility. In fact, 25 percent of couples in their 30s are infertile.

As the number of families seeking medical assistance grows with each new scientific and technological development, new legal questions are presented, each with their own set of ethical and legal dilemmas. Yet South Carolina has failed to address the legal implications of even the most elementary of these procedures.

This article will describe the reproductive technologies presently in use in South Carolina, examine the legal status of the parties when a child is conceived through non-traditional means and explore the legal pitfalls that the practicing lawyer should contemplate when advising clients.

THERAPEUTIC DONOR INSEMINATION

Therapeutic donor insemination (TDI) is the process of inseminating a woman, usually in a physician's office, with sperm, usually frozen and procured from a commercial sperm bank. This comparatively low-cost, low-tech procedure allows families with male factor infertility to achieve parenthood and for the child to be biologically connected to the woman. Common since the 1950s, recent estimates suggest that over 30,000 children have been born by TDI each year. In the United States, more couples build their families through donor insemination than through adoption of newborns.

While the use of donor sperm is the method many couples employ to remedy their infertility, legal uncertainty abounds. For example, at the time of a divorce a husband may seek to avoid his child support obligations on the basis that he is not the biological father of the child conceived from a donor's sperm. Conversely, a wife may attempt to thwart a husband's custody bid claiming that he has no standing because he lacks a biological connection with the child. Successful lawsuits have been brought by sperm donors who were known to the couple, seeking custody or visitation privileges.

Thirty-five states have codified the common law rule that the husband who consents to donor insemination of his wife is the legal father of a child so conceived. Further, the majority of courts suggest that the adoption laws of the state do not apply in donor insemination cases; the husband's consent to the wife's insemination is all that is necessary to establish the husband's legal rights and responsibilities.

The South Carolina Supreme Court held that a husband who consents for his wife to conceive a child through artificial insemination, with the understanding that the child will be treated as their own, is the legal father of...