Final Thoughts (for now anyway) on Dividing ART

So this picks up on what I started a little bit ago here.   The more recent post on the same topic is this one.  I’ll go on as though you’d read those.

The idea that you might draw a line that would but assisted insemination (AI) on the “not-ART” side of the line may seem logically impossible, but I think that is a function of language and how we have come to use ART.   Thus, I hear this voice saying “if you use a turkey baster or a syringe to insert the sperm into the woman’s body, then it is by definition “ART.”   After all, that “A” is “assisted” and that is what you are doing.

I think it is easy to suggest that you should draw the line between “natural” and “assisted” (read perhaps “unnatural?”) conception.   That is the way the line is in fact the way the line is drawn in the UPA and that is the first possible place to draw a line I discussed last time.   On it’s face, it appears to be the  “natural” (and I use the word advisedly) place to draw the line.    

But does it make sense to draw the line there?   Why should a man’s status as a parent or a non-parent (because if he is a donor he is not a parent) turn on the exact manner in which the sperm arrived?   I’ve remarked on this before, so I won’t repeat myself.   It’s at least a fair question to ask.

As an alternative (the second possibility raised in the earlier post) it does not seem to me to be unreasonable to say that we will draw a line between high-tech methods that inevitably require medical intervention (and pretty sophisticated medical intervention) on the one hand (that’s IVF, for example) and low-tech methods that require little or no medical intervention on the other (that includes AI and conventional conception via intercourse.)     Again, you need to ask the “why would this make sense as a place to draw the line” question.

One answer to that is pragmatic.   Anyone engaging in the high-tech forms of ART is already engaged in a fair amount of medical bureaucracy.    No one does IVF on their own at home.   It would be possible to require that everyone engaged in that already bureaucratized process deal with the legal questions about parentage in advance of proceeding.   (Note that for the moment I am not saying anything about what the rules for parentage would be here.  I’m only saying that there is a way to insure that whatever questions need to be resolved get to be resolved in advance.)   After all, people are already filling out various consent forms and so on.

By contrast, the people going the low-tech/no tech route may or may not be engaged with bureaucratic process.   They may just be engaging in sex or performing simple insemination at home, without any professional supervision or intervention.   There may or may not be an opportunity for shared and considered discussion of legal parentage.   This being the case, you might want a different set of rules, one that would apply automatically and obviously, to these situations.

I am not yet sure that I actually think there ought to be a line drawn between high tech and low tech conceptions.  (That’s the short-hand I’m looking for).  I still see the appeal of a uniform rule.   For the moment, though, I hope at least to have established that if one is going to start to draw lines, there are at least two different places one could draw them.