Children of Assisted Reproduction

More than three decades after the birth of the first child conceived through in vitro fertilization, few states have comprehensive statutes to establish the parentage of children born using assisted reproduction techniques (ART). While thousands of such children are born each year courts struggle to apply outdated laws. For example, does a statute terminating paternity for a man who donates sperm to a married woman apply if the woman is unmarried? In 2008, the Uniform Probate Code (UPC) added two much-needed sections on the complicated parentage and inheritance issues that arise in the field of assisted reproduction. Yet it is unclear whether states will enact these new UPC sections; few states have enacted comparable provisions of the Uniform Parentage Act (UPA). The issues can be controversial, particularly regarding children born years after an intended parent’s death, or when the discussion turns to enforcement of a contract for a gestational carrier, the preferred term for a surrogate mother. This Article explores the legal landscape for children conceived through assisted insemination, in vitro fertilization, intracytoplasmic sperm injection, and other techniques. The Article discusses the differences between the UPA and UPC sections that concern assisted reproduction. It examines the critical normative and ethical questions answered by these statutes and analyzes the likelihood that states will adopt either uniform act. The Article looks briefly at gestational carrier agreements to consider whether and how they should be enforced. The Article concludes by noting the need for legislation, the virtues of the UPC over the UPA, and the hope that states will address all those who use ART including gay and lesbian couples, and single parents.