Reproductive technologies provide married couples and unmarried persons who are not able to conceive or to gestate a child the chance to have children who are biologically related to at least one of the intended parents by using noncoital means of conception. These technologies challenge our concepts of who is a parent, what is a family, and what are the responsibilities of those who contribute in untraditional ways to the conception and birth of a child. These issues all also involve inheritance implications. Their use has captured the attention of the media and of the public. Some of the case names, such as Baby M, have become household words. Some of the issues are similar to those involving children conceived by coitus and adopted children. Yet children born from reproductive technologies may have as many as five people implicated in their creation and birth, either from genetic, gestational, or social (a person who raises the child) contributions, a situation that requires new family and inheritance law policies. Some of these issues have already been litigated in Illinois courts.
This article discusses only artificial insemination, a reproductive technique that involves sperm donation. Important, and well publicized, issues also arise from egg donation, surrogacy contracts, and cryopreservation of gametes and embryos. They could not be included here because of space limitations, however, I have discussed them in a recent article in 25 Hofstra L. Rev. 1091 (1997).
Artificial insemination is the most widely used and technologically the simplest form of noncoital reproduction. It also has produced the most legislation. Yet even AI has raised important and unresolved questions about parenthood and inheritance. Artificial insemination used by a married couple and accomplished using sperm from the husband of the couple is known as AIH. The husband and wife are the legal parents of the resulting child and the child’s status is the same as that of a child conceived by coitus. However, if artificial insemination is accomplished by a married couple using donated sperm (AID) (a misnomer because "donors" are usually paid), the issue arises as to who is the child’s father. The traditional presumption in the law is that a child born to a married woman is the legitimate child of the marriage. The presumption may be rebutted, however, for example, by the husband’s sterility, which is often the reason that AID is used. To determine paternity, many states have adopted Section 5 of the Uniform Parentage Act, or legislation based on that section. Section 5 is limited to artificial insemination used by a married couple. The UPA treats the child conceived by a married woman by AID as the child of the husband, not of the sperm donor. The husband is "treated [in law] as if he were the natural father" of the child.
Section Five requires that the insemination be performed under the supervision of a licensed physician and with the written consent of the husband, signed by him and his wife. The statutes of a few states and a more recent uniform act, the Uniform Status of Children of Assisted Conception Act (USCACA), apply also AID used by an unmarried woman and, if the statutory terms are satisfied, the sperm donor is not the child’s natural father. Under these statutes the child of an unmarried woman would have no paternal parent. The USCACA has been adopted in only two states, North Dakota and Virginia.
One purpose of these statutes is to shield the sperm donors from the consequences of parenthood, and thus to provide incentives to men to become donors. The statutes also ensure that the husband of a married couple is protected from unwanted paternity. Most of these statutes, however, do not specifically designate the child’s inheritance rights and there is no litigation concerning an AID child’s inheritance rights from the mother’s deceased husband, or from a deceased donor of sperm to an unmarried woman.
The litigation involving AID children born to married women has occurred in the context of the couple’s divorce. In these cases the husbands did not consent in writing to their wives’ AI, and they contested liability for child support on the ground that the child was not theirs. Most courts have strictly interpreted the AID statutes’ consent requirements, and have determined that the statute did not apply to establish the husbands’ paternity. They also held, however, that the statutes are not the exclusive means to determine paternity. Instead, the courts have ordered child support if the husband had orally consented to his wife’s insemination, or he impliedly agreed to support the child, for example, by supporting the child during the marriage. These cases, however, established only the obligation of child support; they did not determine that the husband is the child’s natural or legal father, and would not have established the child’s ability to inherit from him.
Illinois has adopted a statute patterned after Section 5 of the UPA, 750 ILCS 40/3, which legitimates an AID child born to a married woman if the husband consented in a writing executed and acknowledged by both husband and wife. The statute also declares that the sperm donor is not "treated in law" as the natural father if the parties used a licensed physician. The Illinois Supreme Court has noted that these statutory requirements are mandatory. In re Marriage of Adams, 551 N.E.2d 635, 638 (Ill. 1990). In Adams, the couple had not consented in writing, but the court held that Florida law applied because the child was conceived and born in Florida. The only Illinois connection was that the couple litigated the divorce in Illinois. Under the court’s dicta that the statutory requirements are mandatory, a husband who had not consented as required by the statute would not be liable for child support under any theory, except perhaps an express promise, and presumably the child would not be an heir to the husband’s estate. In In re Marriage of Witbeck-Wildhagen, 667 N.E.2d 122 (Ill. App. Ct. 1996), moreover, the court held that a husband was not the father of a child conceived by AID without his knowledge and consent. The husband had filed for divorce before the child was born.
If a state has no AID legislation, or if the couple has not complied with the AID statute’s terms, no law terminates the sperm donor’s paternity. If the sperm were acquired through a sperm bank, however, the mother would most likely not know the identity of the donor, and the child would not be able to claim an inheritance at the donor’s death. One of the disputed issues in AID is whether the identity of sperm donors should remain secret or whether states should enact legislation permitting or requiring AID children to learn the identity of their biological fathers. The issues raised are similar to, although not identical with, those considered in adoption. For example, it is easier to keep AID a secret than it is adoption because the mother is pregnant with the child. Moreover, the AID child knows the identity of one of its biological parents. Adoption policy has undergone significant changes in favor of disclosure to adopted children not only of their adoption, but also of the identity of their genetic parents. Many states now permit open adoption. If these policies were enacted for AID, but the statutes did not cut off inheritance from the donor, and the AID child learns the identity of the biological father, the child could inherit from an intestate estate or as a pretermitted heir as a nonmarital child if the child could prove the man’s paternity.
In Illinois a nonmarital child may inherit from an intestate deceased father if the decedent acknowledged paternity or had been adjudicated the father. Paternity may be proven after the father’s death as well as during his life (but then must be proven by clear and convincing evidence). 755 ILCS 5/2-2. A sperm clinic often provides the sperm from a single donor to a number of women to use for AID, however. If a statute requires a clinic to identify the donor but does not shield the donor’s estate from his AID children’s intestate inheritance or their pretermitted heir claims, the estate may be subject to a large number of claims.
The other type of AID cases litigated thus far involves unmarried women who conceive children by AID with semen from a known donor. The women want to raise their child as a single parent or with a lesbian partner, not as a co-parent with the donor. Most statutes do not apply to unmarried women. Even AID statutes that apply to unmarried women do not distinguish between known and unknown donors. In a number of cases, donors have litigated to establish their paternity so that they can play a role in raising the child, for example, by means of a visitation schedule. The mothers have disputed those claims on the ground that the donor had agreed not to play a parental role. Unlike the divorce cases, these decisions adjudicate the donor’s paternity, which, if established, determines the child as a potential heir to the donor’s estate.
If the state has an AID statute that applies only to married women, or if the statute applies to unmarried women but the parties did not comply with its terms, a donor may successfully establish paternity, with or without a pre-conception agreement. An example is Jhordan C. v. Mary K., 224 Cal. Rptr. 530 (Ct. App. 1986) in which the parties did not comply with the statute’s terms. Some courts have likened the donor to an unwed father by coitus. A person who becomes a parent in the traditional fashion cannot contract away his or her parental status or obligations, such as the duty to support.
Even in states in which the AID statute includes unmarried women and was complied with, some sperm donors have successfully established their paternity. Some courts have held that the statute does not apply to known donors. One court held that the AID statute would be unconstitutional if it imposed an absolute bar to a man’s assertion of paternity. McIntyre v. Crouch, 780 P.2d 239 (Or. Ct. App. 1989). The court relied on Supreme Court cases that held that the parental rights of an unmarried biological father by coitus cannot be terminated without a hearing if he has established a parental relationship with the child or has demonstrated some commitment to the child.
A similar case is now being litigated in the Illinois courts. A man who provided sperm for AID of an unmarried woman is seeking to establish paternity of the child. The child’s mother and her lesbian partner claim that he had agreed that the couple were to be the child’s parents. The Cook County Circuit Court has decided that the Illinois statute does not apply and that the donor’s claim for paternity could proceed. The case is now on appeal.
One last issue I will raise here, involving children conceived by single women using AID, is whether the biological mother’s lesbian partner can adopt the child and become the child’s second mother. In the Illinois case above, the biological mother’s partner claims that the sperm donor agreed that she would adopt the child. The nonbiological mother often wants to adopt in order to establish a legal relationship to protect her right to custody or visitation if the couple separates, and to gain legal recognition of her de facto parental status. The legal hurdle involved is that adoption typically extinguishes the parental rights of the child’s biological parent or parents. When the biological mother’s partner wants to adopt, however, the couple does not intend for the biological mother to lose her parental rights. In order that the biological mother not lose her parental status, the adoption must be treated as a second-parent adoption, similar to adoption by a stepparent. In Illinois, that would require the couple to adopt the child jointly under 750 ILCS 50/1 (G). The statute gives standing to adopt to "a reputable person of legal age and of either sex." An Illinois appellate court has interpreted the term "person" to include the plural persons to allow a couple to jointly petition for adoption, so that the biological mother would not lose her parental status. Petition of K.M. and D.M., 653 N.E.2d 888, 899, (Ill. App. 1 Dist. 1995). The court remanded the case for the circuit court to determine whether the adoption would be in the child’s best interests. Presumably, the child could inherit from both of the two mothers if each is an adopting parent. The courts in several other states have also interpreted their adoption statutes to permit a mother’s partner to adopt the child without extinguishing the mother’s parental status, for example, Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993) and In re Jacob, 660 N.E.2d 397 (N.Y. 1995).
If a gay man wants to raise a child of which he is the biological father, he must contract with a woman who will bear the child for him and agree to relinquish the child after its birth. That is, he must enter a form of surrogacy agreement that would change the typical result of AID so that the sperm provider becomes the sole legal parent. The legal status of the child, however, would depend on the enforceability of surrogacy contracts in that jurisdiction. Many states do not enforce surrogacy contracts because they violate the state’s adoption statutes. For example, surrogacy contracts involve payments to the surrogate mother and they do not provide a waiting period for the mother to change her mind and not give up the baby to the contracting couple (or unmarried person) to adopt.
Some statutes now distinguish between a surrogate who conceives by AID and one whose pregnancy results from implantation of an embryo conceived by in vitro fertilization (IVF) of the gametes of the contracting couple. This latter type of conception involves egg donation rather than sperm donation, and raises the novel issue of who is the child’s biological mother (the egg donor or the woman who gestates and gives birth to the baby). Yet, there is surprisingly little relevant legislation determining maternity of children conceived by egg donation and IVF. This issue and issues raised by cryopreservation of gametes and embryos and conception after the death of the gamete donor are topics for another article.
Helene S. Shapo is a Professor of Law and Director of Legal Writing at the Northwestern University School of Law, teaching Legal Writing and Trusts and Estates. She currently serves on the Board of Directors of the Association of Legal Writing Directors and is a past Chair of the Legal Writing Committee of the American Bar Association Section on Legal Education and Admissions to the Bar. Professor Shapo has served on several editorial boards, published numerous articles and written several books, notably Law School Without Fear and Writing and Analysis in the Law. She also serves as a writing consultant to law firms, government and corporate lawyers. She received her B.A. degree from Smith College in 1959, her M.A.T. from Harvard University in 1960 and her J.D. from the University of Virginia in 1976.