Assisted Human Reproduction: Unsolved Issues in Parentage, Child Custody and Support

by Tim R. Schlesinger¹

This article surveys the common law and legislative responses to parentage, custody and support issues that arise when children are born through assisted human reproduction (methods other than sexual intercourse). It proposes certain remedies to the lack of legislative and common law framework in Missouri for dealing with these issues.

I. Introduction

The first confirmed case of TID (therapeutic Insemination with Donor sperm) took place in Philadelphia . . . in 1884, performed by William Pancoast of Jefferson Medical College. A wealthy merchant complained to a noted physician of his inability to procreate and the doctor took this as a golden opportunity to try out a new procedure. Some time later, his patient's wife was anaesthetized. Before an audience of medical students, the doctor inseminated the woman, using semen obtained from "the best-looking member of the class." Nine months later, a child was born. The mother is reputed to have gone to her grave none the wiser as to the manner of her son's provenance. The husband was informed and was delighted. The son discovered his unusual history at the age of 25, when enlightened by a former medical student who had been present at the conception.²

In July 2003, Louise Brown turned 25 years old. Louise Brown was the world's first "test-tube baby."³ Of course, the phrase "test-tube baby" is no longer part of the lexicon. Louise Brown was born through the use of "in vitro fertilization."⁴ If Louise Brown or the son of the wealthy Philadelphia merchant were born today, we would say they were conceived through Assisted Human Reproduction, or "Assisted Reproductive Technologies" (ARTs).

In the United States, more than six million people of reproductive age are affected by infertility.⁵ This number does not include the same-sex couples who desire to have children and who, by virtual necessity, must use ARTs. The explosion of the technology of ARTs, combined with the desire of infertile and same-sex couples to have children, have created a time-warp in the application of the law of parentage and child support. The paradigm of the existing law of parentage and child support, in Missouri and most other states, revolves around the idea that parent-child relationships are created by a man and a woman having sexual intercourse and a child being born as a result. This is a horse-and-buggy paradigm in a space-station world. This article cannot be a "how-to" article on the interrelationship between ARTs and family law in Missouri, because there is precious little existing statutory or common-law framework for these issues in Missouri. Rather, this article will explore the current state of the law of parentage, child custody and child support when parents seek to have children through ARTs.

II. Methods of Assisted Human Reproduction

A. In Vitro Fertilization

In Vitro Fertilization (IVF) is a process that begins with hormonal stimulation of a woman's ovaries to produce multiple eggs. The eggs are removed and placed in a glass dish. Sperm are then introduced to the eggs. When a sperm cell fertilizes the egg, this organism, called a pre-zygote (or preembryo), divides until it reaches the four-to-eight cell stage. After this division, several pre-zygotes are transferred to the woman's uterus by cervical catheter. If this part of the procedure is successful, one or more embryos will attach themselves to the uterine wall and develop into a fetus or fetuses.⁶

B. Artificial Insemination

Artificial insemination of humans exists in two forms. In homologous insemination, the sperm of a husband (or intended father) is implanted into the uterus of a wife (or intended mother), for the purpose of fertilizing the ovum of the wife who will then, hopefully, bear a child as a result of the process. In heterologous insemination, also known as donor insemination, the sperm of a donor who is not the intended father (or a fertilized egg consisting of donor sperm), is implanted into the uterus of the woman intending to bear a child from the process.⁷

C. Surrogacy

Surrogacy arrangements can generally be divided into two types: traditional surrogacy and gestational surrogacy. The original type of surrogacy arrangement was created when the ovum of the surrogate mother was artificially inseminated with the sperm of the intended father. The resulting child was genetically related to the intended father and the surrogate mother. Another form of traditional surrogacy occurs when the intended parents use the sperm of an anonymous donor to fertilize the ovum of the surrogate mother. In this arrangement, the surrogate mother has a genetic relationship to the child, but neither of the intended parents does. In gestational surrogacy, the intended parents use the sperm of an anonymous donor and the ovum of an anonymous donor, use IVF to create pre-zygotes, and have the pre-zygotes artificially inseminated into the uterus of the surrogate. This method means that neither the intended parents nor the surrogate have any genetic relationship to the child.⁸

III. Current Missouri Law-Issues Unaddressed

The only Missouri statute that deals directly with ARTs is § 210.824. This portion of Missouri's Uniform Parentage Act⁹ provides, in essence, that the husband of a woman who is artificially inseminated with donor semen (not her husband's), if he has consented to the procedure in writing, "is treated in law as if he were the natural father of a child thereby conceived."¹⁰ The statute further provides that the donor of semen, in this situation, is treated as if he were not the natural father.¹¹

The potential application of this statute is very limited. It does not address children born through IVF. It does not address surrogacy. It only addresses artificial insemination to the extent that the intended parents are husband and wife. If an unmarried couple were to consent to an artificial insemination procedure and raise a child, § 210.824, by its clear terms, would not apply.¹²

The limited application of this statute highlights the questions left unaddressed under current Missouri law. What custody rights do intended parents have to a child born through ARTs? Do intended parents who have no genetic connection to a child have any standing to assert custody or visitation rights? What obligations do intended parents have? What rights, or obligations, do sperm or egg donors have? Can a surrogate mother in a traditional surrogacy arrangement change her mind and obtain custody or visitation rights? What rights, or obligations, do surrogate mothers have in a gestational surrogacy arrangement? What happens to frozen preembryos when a couple divorces or breaks up? These questions have not been answered by statute or common law in Missouri. We must, therefore, look to other jurisdictions for their answers.

IV. In Vitro Fertilization-Custody Issues Cryopreserved Preembryos

Preembryo is another term for pre-zygote (the organism created when the sperm cell fertilizes the egg in the glass dish, and then divides, resulting in four to eight cells) and is the term used most often in the case law. In the family law context, controversies usually arise when, instead of being implanted in the woman's uterus, these preembryos are frozen (cryopreserved) for future use. Then, before the cryopreserved preembryos are used, the couple decides to divorce or break up. If one party wants the preembryos to be used and the other party wants them to be destroyed, they become the subject of litigation.

The technology that allows preembryos to be frozen is a critical benefit to couples using IVF. Cryopreservation allows couples to have more than one pregnancy without having to endure the painful, frustrating and expensive process of "hormonal stimulation and egg retrieval" more than one time.¹³ The highest courts of six states have, to date, resolved such disputes over frozen preembryos, but the analysis and method of their disposition is far from uniform.

In two of these cases, the courts relied on the constitutional right of privacy to resolve the dispute. In Davis v. Davis,¹⁴ the mother wanted to have the preembryos donated to an infertile couple. The father wanted to have them destroyed. The Tennessee Supreme Court held that each parent had a constitutional right of privacy that governed their interest in the preembryos. The court held that the father's right not to procreate was more compelling than the mother's right to determine the use of the preembryos.¹⁵ In J.B. v. M.B.,¹⁶ the New Jersey Supreme Court held that the constitutional right to privacy protected both parents' interests in the preembryos. The facts in J.B. v. M.B. were similar to those in Davis. Both parents were gamete providers (the husband provided the sperm and the wife provided the eggs). The husband wanted to donate the frozen preembryos to an infertile couple and the wife wanted them destroyed. The court held that the mother's rights would be irrevocably extinguished if the father were allowed to have the preembryos implanted in a surrogate, against the mother's wishes. In Davis and J.B., the courts ordered the preembryos destroyed.¹⁷

In three more cases, the highest courts of Massachusetts, New York and Washington decided the disposition of the preembryos on the bases of the contracts the parties signed with the IVF providers in each case. In re the Marriage of Litowitz,¹⁸ Becky and David Litowitz were married, and David adopted Becky's two children from a previous marriage. The couple then decided to have another child by IVF. Five preembryos were created with David's sperm and an egg donor. Three of the five embryos were implanted in a surrogate mother and a baby girl was born. Two of the preembryos were cryopreserved.¹⁹ The couple divorced and the trial court awarded the frozen preembryos to David. The Court of Appeals upheld the trial court and Becky appealed to the Washington Supreme Court. In this case, David and Becky signed an extensive agreement with their IVF provider. That contract provided, in part, that Becky and David were "the Intended Parents and as such, the Intended Parents shall have the sole right to determine the disposition of said egg(s)."²⁰ The contract further provided that, in the absence of further direction or agreement of David and Becky, after five years "our pre-embryos be thawed but not allowed to undergo further development." ²¹ According to the Washington Supreme Court, even though Becky was not a gamete provider (didn't have a genetic connection to the preembryos), the IVF contract defined her as an intended parent and clearly gave her equal rights to determine the disposition of the eggs.²² In the dissolution proceedings, David indicated his wish to put the remaining preembryos up for adoption. Becky wanted to implant the remaining preembryos and bring them to term. The court based its decision solely on the contractual rights of the parties under the preembryo cryopreservation contract. The court did not award the preembryos to either party, but held that they would be thawed out and destroyed pursuant to the provisions of the contract.²³

In A.Z. v. B.Z.,²⁴ the Supreme Judicial Court of Massachusetts held that a contract between the IVF provider and the parties providing that, in the event of "separation" any unused preembryos were to be given to the wife for implantation, was unenforceable.²⁵ The court did not specifically find the contract to be ambiguous, but the contract did not provide what was to happen in the event of divorce. The court found that to be significant. The court added dicta, instructive to anyone attempting to draft or enforce one of these contracts, indicating its unwillingness to enforce a contract that would cause a child to be born against one of the parties' wishes.²⁶ In Kass v. Kass,²⁷ the New York Court of Appeals enforced an IVF agreement that provided, in unambiguous terms, that in the event the parties were unable to agree to the disposition of the preembryos, they would be donated for research to be determined by the IVF program.²⁸ Although the court enforced the dispositional agreement, it noted that how to dispose of or use preembryos is "a quintessentially personal, private decision."²⁹ In every one of these cases, one of the parties wanted to use the unused preembryos to cause the birth of a child.

In the most recent case, In re Marriage of Witten, the Iowa Supreme Court took a different route and held that it was "against the public policy of [the State of Iowa] to enforce [an] agreement" between a couple regarding their future family and reproductive choices.³⁰

We first note our agreement with other courts considering such matters that the partners who created the embryos have the primary, and equal, decision-making authority with respect to the use or disposition of their embryos. We think, however, that it would be against the public policy of this state to enforce a prior agreement between the parties in this highly personal area of reproductive choice when one of the parties has changed his or her mind concerning the disposition or use of the embryos.³¹

In Witten, both parents were gamete providers, but this did not appear to influence the court's analysis. The Iowa Supreme Court invoked a principle they called "contemporaneous mutual consent," holding that the cryopreserved preembryos would be stored indefinitely until the parties reached agreement about what to do with them.³² In Witten, once again, one of the parties (the wife) wanted to use the preembryo to conceive a child. She argued that the "best interests of the child" test compelled the court to allow her to use the preembryos. The court disposed of that argument, holding that the principles of the "best interest" standard are intended to assure a child already born "the opportunity for the maximum continuing physical and emotional contact with both parents," and that standard is "simply not suited to the resolution of disputes over the control of frozen embryos."³³

It is very important to note that, although the various courts used starkly different analyses, none of these courts allowed the party who wanted to use the preembryos to create a fetus against the wishes of the other party. Would Missouri courts reach any different result?

No reported case in Missouri has dealt with the issue of cryopreserved preembryos. However, as early as 1994, there were already approximately 6,000 children born each year in the United States as a result of IVF. If we assume a divorce rate of 50%, it isn't hard to imagine that the Missouri courts will soon have to deal with this issue. Is it a constitutional issue, a contractual issue, a public-policy issue, or a combination of the three? Should the intent of the parties at the time of entry into the IVF process control the disposition of the preembryos? Of the six cases that have made it to a state's highest court, five of them involve husbands and wives who are both gamete providers. Only Litowitz involved an intended parent (Becky) who was not a gamete provider. A careful look at the Litowitz case raises some troubling questions. The Litowitz court found that Becky Litowitz's only rights to the cryopreserved preembryos stemmed from the cryopreservation contract. However, in Litowitz, the couple had already given birth to a child from the same procedure and the same set of preembryos. What if custody of that child had been in dispute? Under the court's reasoning, could David Litowitz have claimed he had a greater right to custody based on his genetic connection to the child? The constitutional right of privacy, now well-established, may be the more appropriate source of an intended parent's rights.

Custody of Live Children

The New York Court of Appeals answered one of these questions in McDonald v. McDonald.³⁴ In that case, the husband tried to argue in the divorce proceeding that the wife did not have maternity rights to the children because she was not genetically related to them. The husband and wife had combined donor eggs with the husband's sperm to create preembryos, which were implanted in the wife. The wife gave birth to twins as a result. The court held that the wife was the legal mother because of her intent to raise the children and create a family.³⁵

In Johnson v. Calvert, ³⁶ a husband and wife contracted with a surrogate mother to gestate a child on their behalf through IVF. The surrogate mother asserted maternity rights based on her biological connection to the child through gestation, even though the husband and wife both provided gametes and were, therefore, the genetic parents of the child. The court denied maternity rights to the surrogate mother and held that the wife was the legal mother because "from the outset [she had] intended to be the child's mother," and the child would not have been born but for the couple's desire and actions to create a family.³⁷

V. Surrogacy-Custody Issues

A. In re Baby M³⁸

The Baby M case turned the traditional idea of parentage on its head. This case involved a traditional surrogacy contract between William Stern and Mary Beth Whitehead. The contract provided that Whitehead was to be artificially inseminated with sperm from Stern and for her to carry the baby to term. After the baby's birth, Whitehead was to relinquish the child to Stern and Stern's wife. She was then to give up any parental rights she had in the child and allow Stern's wife to adopt the child. On March 27, 1986, Whitehead gave birth to a healthy baby girl. She gave the baby to the Sterns, but appeared at the Sterns residence a week later and demanded that she spend time with the child or she would kill herself. The Sterns reluctantly agreed to let her take the baby, named Melissa, home with her for a week. Whitehead took the baby and immediately fled to Florida. The baby was forcibly taken from Whitehead four months later by Florida law enforcement and returned to the Sterns in New Jersey.³⁹

Thus began a prolonged and sensational legal battle to determine who were Melissa's parents under New Jersey law. The trial court enforced the surrogacy contract and terminated Whitehead's parental rights.⁴⁰ The New Jersey Supreme Court reversed, holding, among other things, that surrogacy contracts conflicted with laws prohibiting the exchange of money in connection with adoptions, conflicted with the public policy of the state, and the right to procreation did not entitle the Sterns to sole custody of Melissa. In spite of the unenforceability of the surrogacy contract, however, the court, using a typical best interests of the child analysis, found that Melissa's best interests justified awarding custody to Stern and his wife. The court held there was no justification, under New Jersey law, for terminating Whitehead's parental rights, and remanded the case to the trial court for a determination of what visitation she should have with Melissa.⁴¹

Baby M raises myriad questions. What if the surrogacy arrangement in Baby M was the type in which the sperm of a donor had been used? Would the Sterns have had no right to custody? Would they not have even had standing to challenge custody? What if Whitehead had been less unstable? Could the court have found the best interests of the child justified giving custody to Whitehead? Are all surrogacy contracts against public policy?

There has been no federal legislation in response to Baby M, although two attempts were made to ban surrogacy agreements. At least 14 states have passed surrogacy legislation (Missouri is not one of them). Michigan has passed a statute making it a felony to facilitate a surrogacy contract.⁴² Five states have passed legislation making surrogacy contracts void and unenforceable.⁴³ Five states have banned only those surrogacy contracts entered into for pecuniary gain by the surrogate.⁴⁴ On the other hand, three states have passed legislation that allows and enforces surrogacy contracts.⁴⁵

In the Johnson case, the California Supreme Court acknowledged that the surrogate mother had a biological connection to the child (even though the egg was not hers) sufficient to claim maternity under California law. However, the court relied on the intent of the parties, which was clearly that the husband and wife who contracted with the surrogate were going to be the parents of the child. The court denied maternity rights to the surrogate mother.⁴⁶ In addition, the court enunciated the standards for acceptable surrogacy contracts in California, specifically opposing the view of the New Jersey Supreme Court in Baby M that such contracts are against public policy.⁴⁷

The Johnson analysis is far from universal. An Ohio case specifically rejected the intent test relied on by the Johnson court, finding that the determination of who are the natural parents is guided by the genetic imprint left on the child, rather than by who are the child's intended parents.⁴⁸ The Ohio case involved a gestational surrogacy (the surrogate mother did not have a genetic connection to the child) arrangement, so the result was the same as if they had used the "intended parents" analysis. ⁴⁹

In Missouri, there is no such legislation and no relevant case law. However, since surrogacy contracts are used in Missouri on a more than occasional basis, we are left to wonder about the fate of children born as the result of surrogacy contracts, as well as the rights of the surrogates and intended parents.

VI. Child Support Issues-IVF and Surrogacy

In re Marriage of Buzzanca⁵⁰ is another case involving a gestational surrogacy agreement. In this case, however, the child was born with five potential parents: an anonymous egg donor; an anonymous sperm donor; a gestational mother; and the husband and wife who intended to be parents. Upon divorce, which was filed before the child was born, the intended father claimed that he did not have any legal obligation to pay child support. The California court enunciated a clear rule: When a child is born because a medical procedure was initiated and consented to by the intended parents, the intended parents are the legal parents of the child.⁵¹

The Illinois Supreme Court, in the case of In re Parentage of M.J.,⁵² was recently faced with the task of applying their inadequate statutory framework to a scenario involving donor insemination and an unmarried former couple. The M.J. case is particularly instructive for Missouri practitioners because the Illinois statute under scrutiny in M.J. is identical to § 210.824, discussed above. In M.J., Alexis and Jim had a 10-year relationship, but never married. They discussed marriage, but Jim always resisted. They attempted to conceive, but could not. Then they agreed to have Alexis undergo donor artificial insemination. Alexis gave birth to twin boys. Jim participated in the naming of the children, acknowledged the children as his own, and provided financial support for them. When the boys were three years old, Alexis discovered that "Jim" was actually named Raymond and that he was married. Alexis ended their relationship and sued for declaration of paternity and support.⁵³

Illinois has adopted the Uniform Parentage Act of 1973 (Illinois Parentage Act). Section 3 of the act provides, in part, as follows:

If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband shall be treated in law as if he were the natural father of a child thereby conceived. The husband's consent must be in writing executed and acknowledged by both the husband and wife. . . .⁵⁴

Obviously, Raymond had no biological or genetic relationship to the twins. He could not be held responsible under traditional parentage law. The court found that, since there was no written consent, Raymond could not be held responsible under the Illinois Parentage Act, and that portion of Alexis' petition was properly dismissed.⁵⁵ Fortunately for Alexis and the minor children, the court, desperately searching for some way to hold Raymond accountable, found "that the Illinois Parentage Act [did] not bar" common law claims for child support "under an estoppel or waiver theory."

If the M.J. case were brought in Missouri, the courts would be stuck with the same inadequate statutory framework and the lawyers would be fumbling around searching for common-law remedies to make someone the father of these children. As the Supreme Court of Illinois succinctly noted:

[T]he Illinois Parentage Act fails to address the full spectrum of legal problems facing children born as a result of artificial insemination and other modern methods of assisted reproduction. The rapid evolution of assisted reproduction technology will continue to produce legal problems similar to those presented in this case. We urge the Illinois legislature to enact laws that are responsive to these problems in order to safeguard the interests of children born as a result of assisted reproductive technology.⁵⁶

Although some other states have assigned parental responsibility based on conduct reflecting consent to the artificial insemination procedure,⁵⁷ parents and children born as the result of ARTs are left woefully unprotected by the lack of any framework or precedent that provides who are the parents and who has parental responsibility.

VII. Proposal-Adoption of Statutory Guidelines

In order to serve the needs of children born through ARTs, as well as parents who want to have children through ARTs, we need to match the level of statutory sophistication to the complexities of modern family structure and reproductive technology. A statutory framework has already been developed that addresses many (though not nearly all) of the issues which need to be addressed relating to ARTs and family law. The National Conference of Commissioners on Uniform State Laws has created and approved a new Uniform Parentage Act (Amended 2002).⁵⁸

The proposed new UPA creates two entirely new articles. Article 7 is titled "Child of Assisted Reproduction" and Article 8 is titled "Gestational Agreement." The critical sections of Article 7 provide, essentially, the following:⁵⁹

a) a donor is not a parent of the resulting child;

b) a man who provides sperm for assisted reproduction with the intent to parent a woman's child is the parent;

c) the man and the woman who are the intended parents of the child to be conceived by ART must sign written consents, provided, however, that the failure to sign a consent does not preclude a finding of paternity if the man and the woman reside together in the same household during the first two years of the child's life and openly hold out the child as their own.

Article 8 replaces the commonly used term "surrogate mother" with the more accurate term "gestational mother." Article 8 provides, in part, that gestational agreements are authorized and may be entered into by the prospective gestational mother, her husband if she is married, a donor, and the intended parents. The man and the woman who are the intended parents must both be parties to the agreement and the agreement must provide that they are to be the parents of the child to be conceived. The agreement must be approved by a court after a hearing and a home study (unless waived).⁶⁰ The general intent of Articles 7 and 8 is that gestational mothers and donors of genetic material (eggs, semen) who are not the intended parents are excluded as parents of those children. The further intent of these provisions is that a man and a woman who attempt to conceive a child through ARTs, with the intent that they will be the parents of and raise the child, are the legal parents of the child, regardless of biological or genetic connections to the child.

The act's model is a heterosexual couple. It may permit, by implication, single-person parentage. The act does not address the disposition of frozen preembryos. The act is (perhaps not surprisingly) silent on the volatile issue of same-sex couples and parenting.⁵⁸

At present, Missouri has neither a statutory nor common-law framework for dealing with cases like Davis v. Davis, In re: Baby M, or In re: M.J.⁶² A cursory review of the cases discussed in this article reveals a pattern of trial courts and courts of appeal being reversed, in whole or in part, by the supreme court of each state. This is the result of a lack of guidelines to address the reality of shifting family structures and ARTs. The adoption of Articles 7 and 8 of the act by the Missouri legislature would greatly reduce the uncertainty and confusion that exists in other states when these issues are addressed, ad hoc, by the supreme courts of each state.

VIII. Conclusion

The California Court of Appeals in Buzzanca⁶³ predicted that even if assisted reproduction technology were banned in a particular state, that state's courts would still be called upon to determine the identity of parents of children born of ARTs in other states where the procedures were not banned.

A child cannot be ignored. Even if all means of artificial reproduction were outlawed with draconian criminal penalties visited on the doctors and parties involved, courts would still be called upon to decide who the lawful parents really are and who-other than the taxpayers-is obligated to provide maintenance and support for the child. . Courts can continue to make decisions on an ad hoc basis without necessarily imposing some grand scheme. . . [o]r the Legislature can act to impose a broader order which, even though it might not be perfect on a case-by-case basis, would bring some predictability to those who seek to make use of artificial reproductive techniques.⁶⁴

All of the children who are born through the use of ARTs deserve the protection of having their parents bound by the same rights, obligations and responsibilities as children born from sexual intercourse.⁶⁵ If the Missouri legislature were to adopt Articles 7 and 8 of the new Uniform Parentage Act, that action would go a long way toward protecting these children and toward giving guidance to would-be parents and their attorneys trying to negotiate the emotional and legal minefield of having children through ARTs. The legislature could either add to Article 7 to deal with the disposition of frozen preembryos or address those issues in a separate statute.

Thus far, every court that has been forced to deal with these issues has done so without guidance from the legislature. Hopefully, the Missouri legislature can give its citizens the guidance they need to make intelligent decisions about having children through assisted reproductive technologies.

Footnotes

¹ Mr. Schlesinger is a shareholder in the St. Louis firm of Paule, Camazine & Blumenthal, P.C. His practice is devoted exclusively to family law. He received his J.D. from the University of Missouri-Columbia in 1983.

² A.D. Hard, Artificial Impregnation, 27 Med. World 163 (1909). Cited at http://www.repromed.org.uk/history/history_1500.htm (last visited January 6, 2005).

³ England's Test-Tube Baby. U.S. News & World Report, July 31, 1978, at 24.

⁴ Id.

⁵ American Fertility Association Fact Sheet, at www.theafa.org (last visited January 7, 2005).

⁶ Stedman's Medical Dictionary 637 (26th ed. 1995).

⁷ On-Line Medical Dictionary, at http://cancerweb.ncl.ac.uk/omd (last visited January 7, 2005).

⁸ Janet L. Dolgin, Defining The Family: Law, Technology, And Reproduction In An Uneasy Age 64, 66-67 (N.Y. Univ. Press 1997).

⁹ Section 210.817, et seq.

¹⁰ Section 210.824.1, RSMo Supp. 2004. In order for this section to apply, "[t]he husband's consent must be in writing," a supervising physician must "certify the signatures [of the husband and wife], and the date of the insemination, and file the" consent with the Bureau of Vital Records. However, the section goes on to provide that "failure [of the physician] to comply with [the statute does] not affect the father and child relationship."

¹¹ Section 210.824.2, RSMo Supp. 2004.

¹² In August 2004, the Missouri Constitutionwas amended to provide that Missouri will only recognize marriage between a man and a woman. See Mo. Const. art I, § 33. In addition, § 451.022, RSMo 2004, provides that Missouri only recognizes marriage between a man and a woman, regardless of whether or not the marriage is valid in the state (or country) where contracted. Therefore, if a lesbian couple were validly married in Canada or another jurisdiction that recognizes same-sex marriage, then came to Missouri and underwent artificial insemination, this statute would not apply.

¹³ Karissa Hostrup Windsor, Disposition of Cryopreserved Preembryos After Divorce, 88 Iowa L. Rev. 1001 (2003), citing "IFFS Surveillance 98, 71 Fertility & Sterility 15S, 155 (Supp. II 1999)."

¹⁴ 842 S.W.2d 588 (Tenn. 1992).

¹⁵ Id at 604-605.

¹⁶ 783 A.2d 707 (N.J. 2001).

¹⁷ Davis at 604-05; J.B. at 720.

¹⁸ 48 P.3d 261 (Wash. 2002).

¹⁹ Id. at 261-262.

²⁰ Id. at 264 (emphasis added).

²¹ Id. at 267.

²² Id. at 267.

²³ Id. at 271-72.

²⁴ 725 N.E.2d 1051 (Mass. 2000).

²⁵ Id. at 1056-1057.

²⁶ "[W]e conclude that, even had the husband and the wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen preembryos, we would not enforce an agreement that would compel one donor to become a parent against his or her will. As a matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement." Id. at 1057-1058.

²⁷ 696 N.E. 2d 174 (N.Y. 1998).

²⁸ Id. at 176-177.

²⁹ Id. at 183.

³⁰ 672 N.W.2d 768, 781 (Iowa 2003).

³¹ Id at 780-781.

³² Id at 783.

³³ Id at 775.

³⁴ 608 N.Y.S.2d 477 (N.Y. App. Div. 1994)

³⁵ Id at 481.

³⁶ 851 P.2d 776 (Cal. 1993).

³⁷ Id. at 782-83.

³⁸ 537 A.2d 1227 (N.J. 1988).

³⁹ Id. at 1235-1237.

⁴⁰ In re Baby M, 525 A.2d 1128 (N.J. Super. Ct. Ch. Div. 1987).

⁴¹ 537 A.2d at 1250, 1259, 1261-1262.

⁴² Mich. Comp. Laws Ann. §§ 722.851-722.863 (2004).

⁴³ AZ, IN, NY, ND and UT.

⁴⁴ KY, LA, NE, NV and WA.

⁴⁵ FL, NH and VA.

⁴⁶ Johnson at 782.

⁴⁷ Id. at 784-785.

⁴⁸ Belsito v. Clark, 644 N.E.2d 760, 767-768 (Ohio Ct. Cmn. Pleas 1994).

⁴⁹ Id. at 768.

⁵⁰ 72 Cal. Rptr.2d 280 (Cal. Ct. App. 1998).

⁵¹ Id. at 282.

⁵² 203 Ill.2d 526 (Ill. 2003).

⁵³ Id at 530-531.

⁵⁴ 750 Ill. Comp. Stat. Ann. 40/3 (West 2004) (emphasis added).

⁵⁵ In re M.J., at 535-536. Since the court found that the UPA portion of Alexis' petition needed to be dismissed, the court affirmatively stated it was not reaching a conclusion as to whether § 3(a) of the act applied to unmarried persons.

⁵⁶ Id. at 536-37.

⁵⁷ See Gursky v. Gursky, 242 N.Y.S.2d 406 (N.Y. Spec. Term 1963); K.S. v. G.S., 440 A.2d 64 (N.J. Super Ct. Ch. Div. 1981); In re Marriage of L.M.S., 312 N.W.2d 853 (Wis. App. 1981); In re Baby Doe, 353 S.E.2d 877 (S.C. 1987).

⁵⁸ See www.law.upenn.edu/bll/ulc/upa/final2002.htm (last visited January 6, 2005).

⁵⁹ Uniform Parentage Act (amended 2002) §§ 702, 703, 704.

⁶⁰ Id, §§ 801 and 803.

⁶¹ In light of the increasing number of same-sex couples who are having children through ARTs, the Massachusetts Supreme Court's decision directing the Massachusetts legislature to provide for same-sex marriage in Massachusetts, as well as the actions taken by certain other governmental entities to license same-sex marriages, this is an issue that needs to be addressed.

⁶² See notes 10, 32 and 45, infra.

⁶³ See note 43, infra.

⁶⁴ Buzzanca, at 280.

⁶⁵ Article 7, § 704 of the proposed Uniform Parentage Act (amended 2002) requires consent to assisted reproduction to be signed by the man and the woman. Article 8, governing gestational agreements, repeatedly refers to "the man and the woman." These sections could be amended to read "both intended parents" so long as "intended parent" was defined in the act. This would provide protection for same-sex parents and the children of same-sex parents, without necessarily giving legislative approval to same-sex arrangements.

JOURNAL OF THE MISSOURI BAR
Volume 61 - No. 1 - January-February 2005