Dividing ART

(I’m writing this aboard a cruise ship, of all places, and have somewhat limited Internet access.  In particular, it is difficult for me to see my own blog.  For that reason, you won’t find links to earlier related posts.  If you want to set this into context, I’m afraid you’ll just have to blunder about and do it yourself.   The tags should help.  I’m sorry about the inconvenience, but perhaps you would consider this 1/2 of a loaf?)

Some of this is in the nature of restating what you could, if you looked, find elsewhere on the blog.  But I hope to make some headway beyond where I’ve been.

To begin with terms:   “ART” stands for assisted reproductive technology.   Generally speaking, ART includes a whole range of procedures including, but not limited to, IVF (that’s in vitro fertilization) and AI (that’s assisted insemination, which some people call (or called) artificial insemination.)  I’m not sure if there is any authoritative place to look for a list of all of the techniques that fall within the ambit “ART.”   Instead, I think that ART automatically includes any alternative to unassisted reproduction–which is simply a man and a woman engaging in intercourse.

The whole point of ART, of course,  is to allow reproduction for people who are otherwise unable to reproduce. It is worth noting that the inability to have children might result from some disease or injury or condition, or it might simply be the result of particular circumstances such as a person being single, or two people being members of the same sex.

The increasingly frequent use of ART, the burgeoning array of methods available, and the expanding commercial aspect of the field, as this blog has observed repeatedly, has posed endless difficulties for those concerned with the law determining parentage.   ART poses challenges to existing law and at the same time forces development of new law.

Now the Uniform Parentage Act (UPA) is a model law intended to be enacted by state legislatures around the country.   The ultimate goal would be, as the name suggests, uniform law.   The folks who bring us the UPA have had great success in generating uniform law in other areas–take, for example, the Uniform Commercial Code (UCC).

Uniformity is a good thing in a world where people constantly travel from state to state in their ordinary lives and in their businesses.   But the drafters of uniform laws have not had much success with the UPA.   The law governing parentage varies enormously state to state.  Even those states that have enacted a form of the UPA have enacted distinct forms.   Even so, the UPA is as good a place as any to examine the treatment of ART, partly because it was redrafted in 2000 and again in 2002 in an effort to deal with the wide array of issues presented in parentage cases.

The UPA essentially has two parallel (but not intersecting) bodies of law–one of ART and one for not-ART.   Standard and historically derived law applies to non-ART reproduction.   Everything else (which is by definition ART) gets a new and different set of rules.  So, for example, men who donate sperm are not parents.   Men who provide genetic material via sex are.   The line between cases where the ART rules apply and those where the non-ART rules apply is defined by how the sperm got to the egg.   This, of course, creates some very hard cases where heterosexual couples are both engaged in a sexual relationship and using ART.    You can find mention of those elsewhere in the blog.

Now in a comment not so long ago Raegen pointed to a different possible dividing line–determined by where the egg and sperm meet.   I want to think about that.   This would mean that if the egg and sperm meet in a petri dish (or presumably anywhere outside of a woman’s body), we’d consider that ART, subject to a distinct set of rules while if the egg and sperm meet in utero, we would not consider it ART.   Essentially what this does is move donor insemination out of the ART category.

If you maintained current legal rules, this would be most unsatisfactory, at least from my point of view.   Sperm donors would be treated as fathers, for generally under established legal standards, genetic connection is what determines parental status.  But I don’t have any particular reason to remain wedded to existing legal standards, generally, so this objection does not necessarily rule out using the site of conception as a dividing line for different bodies of law.   Which means it is still worth thinking about.