ARTIFICIAL REPRODUCTIVE TECHNOLOGY

INTRODUCTION

 The rapid advances of artificial reproductive technology^[1] (ART) in the field of medical science provides increasing options to couples and individuals yearning to conceive a genetically related child.^[2]  While the number of couples and individuals who may utilize ART to conceive of a child has increased dramatically over the last decade, the law regulating ART has been slow to develop and what law exists oftentimes appears inadequate.   

Take for example surrogacy agreements.  Although surrogacy has become a widely accepted ART technique, only one state, Florida,^[3] has promulgated legislation which distinguishes between “gestational” and “traditional” surrogacy arrangements, despite the fact that gestational surrogacy is clearly distinguishable in law and in biology.^[4]  Arkansas is the only state that has passed legislation providing an unconditional presumption of validity of traditional surrogacy arrangements; their statute concludes that a child born to a surrogate mother is the child of the “intended parents” and not that of the surrogate.^[5] 

Other states' laws upholding traditional surrogacy arrangements condition contract validity on the surrogate mother being unpaid and/or the non-gestating “mother” being “infertile”^[6]; as written, such laws may not apply to gestational surrogacy arrangements because the intended mother may be “fertile” to the extent that she can now donate her ovum which, when in vitro fertilized with her husband’s sperm, can be placed into the uterus of a genetically unrelated woman to incubate (gestate) the embryo.^[7]  Many states have passed legislation which generally denies the enforcement of surrogacy arrangements.^[8]  It is altogether unclear whether such legislation includes the distinguishable gestational surrogacy contracts.

The ever-increasing gap^[9] between ART and the field of medical science, on the one hand, and the lack of any consistent regulation of that science, on the other hand, is also evident in many other techniques of ART besides surrogacy.  For example, lawmakers and the courts have struggled to define, with any consistency, the legal rights afforded an embryo; generally that determination turns on whether the embryo is considered merely property,^[10] or afforded rights of a person,^[11] or something in between.^[12]  No state legislation has been promulgated concerning rights governing embryo adoption,^[13] and only one state has passed laws regulating embryo destruction.^[14]

This Article will critically examine the current status of the law as applied to the present ART techniques.  Part I briefly reviews constitutional cases affecting a person's right to “beget a child”^[15] and the status of ART regulation under Title VII of the Civil Rights Act of 1964 with its pertinent amendments, and the Americans with Disabilities Act of 1990.  Part II discusses ART’s biological elements and procedures, defines gametes, zygotes, embryos, the fetus and briefly describes the procedures of artificial insemination and in vitro fertilization.  Part III reviews the legal status of gametes and the products of fertilization, zygotes and embryos.  Part IV  examines the law governing disputes over the control and ownership of cryopreserved embryos.  Part V analyzes gender or sex selection of offspring. 

Part VI analyzes the regulation of persons conducting in vitro fertilization, ART, embryo research, the use of embryos for clinical research, and the disposition and sale of embryos.  Part VII reviews the status of surrogacy contracts and the controversies surrounding the determination of legal parenthood in traditional and non-traditional surrogacy.  This Article concludes that it is not the science itself but rather how, if at all, that science should be regulated which poses the greatest challenge associated with ART.  As a result, the authors believe that uniform legislation should be developed which, at a minimum, encompasses the scientific advancements made in ART and regulates that science accordingly.

I.  PROCREATION AND CONSTITUTIONAL AND FEDERAL STATUTORY RIGHTS

A.            Constitutional Protections

Although neither the U.S. Supreme Court nor the federal circuit courts^[16] have yet to decide a case involving a state’s ability to restrict or otherwise regulate ART, and whether such regulation would pass muster under the Constitution, arguably a person’s right to use artificial reproductive technologies to procreate is rooted in the Constitution.^[17]  The first U.S. Supreme Court case to judicially recognize a constitutional right to procreate was Skinner v. Oklahoma^[18] in 1942.  The Court stated that marriage and procreation are basic civil rights of man.^[19]  The Court also declared procreation to be a fundamental right essential to the existence and survival of the race.^[20]

Later, Eisenstadt v. Baird^[21] held that a fundamental right of privacy regarding birth control decisions exists under the penumbra of the Bill of Rights and “liberty” in the Fifth and Fourteenth Amendments.  This fundamental right is the “right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”^[22]  Writing for the majority, Justice William Brennan’s sagacious use of the word “beget” likely foresaw the oncoming scientific advances in reproductive medicine. 

In 1973 the Court’s decision of Row v. Wade^[23] revolutionized women’s privacy rights, holding constitutionally protected a woman’s right to determine whether to terminate her pregnancy.  The first trimester strict scrutiny standard of review deflected governmental attempts to restrict women’s freedom of choice until Casey v. Planned Parenthood^[24] in 1992.  Justice O’Connor, writing for the majority, held in Casey that the strict scrutiny standard of review applied to the period of non-viability of the fetus.  After that time, the government’s interest in protecting the mother and child is not subject to the strict scrutiny standard of review.

Specifically addressing one aspect of artificial reproductive technology, a federal district court in Ohio observed that “the Supreme Court precedent in the field of privacy rights guarantees a woman the right to control her own reproductive functions and thus her desire to become pregnant by artificial insemination.”^[25]  Thus, while neither the U.S. Supreme Court nor federal circuit courts have directly ruled on a case involving artificial reproductive technology, it appears that such a right does exist under Constitutional protections afforded an individual to procreate.  As such, any attempts of government  to intrude or otherwise restrict a person’s access to ART arguably will be limited by the necessity to prove a compelling governmental interest.

B.        Statutory Protections Under the Civil Rights and Americans with Disabilities Acts

 Congress has promulgated law prohibiting discrimination relating to procreation.  The Civil Rights Act of 1964^[26] (CRA)  prohibits discrimination in compensation, terms, conditions, or privileges of employment on the basis of race, religion, color, national origin, or sex.^[27]  The Pregnancy Discrimination Act (PDA) of 1978,^[28] amending the Civil Rights Act, specifically applied the CRA to women’s employment rights as related to pregnancy.  The PDA protects a woman’s choice to become pregnant while maintaining her position in the workforce, thereby ensuring equal opportunity in employment.  As a result, any employer’s conduct adversely affecting a woman’s employment status because she chose to undergo possibly time consuming (and expensive) artificial reproductive procedures, including in vitro fertilization, would likely be prohibited under PDA.  While the language of the statute appears to limit PDA to women,^[29] it is possible that a court could extend the law to apply to men desiring ART services,^[30] such as men deficient in sperm production (low sperm count) or post-vasectomy (who require a re-anastomosis of their previously ligated vas deferens^[31]).

The Americans with Disabilities Act (ADA) of 1990^[32] prohibits discrimination in employment and at places of public accommodation against a person on the basis of his or her disability.  A disability is defined as a physical or mental impairment substantially limiting one or more major life activities.^[33]  In Bragdon v. Abbott,^[34] the U.S. Supreme Court found infertility constituted a serious impairment of the “major life activity” of reproduction.  Consequently, the Court specifically included infertility as an ADA recognized disability prohibiting discrimination and requiring reasonable accommodation.

Although relatively untested at present, the constitutional and statutory protections applicable to procreation generally will likely also severely limit any attempted governmental regulation aiming to restrict the availability of ART.

II. TERMS AND PROCEDURES OF ART

A.            The Biology of ART

Before analyzing the various legal issues related to artificial reproductive techniques, it is important to understand the medical technology associated with ART; indeed, any hope of  achieving consistency in the regulation of ART will require, at a minimum, generally accepted definitions of the biology of ART.

A “gamete” is a sex reproduction cell containing one-half (a haploid) of the 46 chromosomes contained in all other human body cells.^[35]  Gametes are either a spermatozoa (or sperm^[36], for short) or ova (or eggs).^[37]

One sperm fertilizes one ovum.  The result of this cellular fusion is a single cell known as a “zygote.”^[38]  The zygote contains 46 chromosomes with half the genetic contents from the genetic female ova and half its genes from the male sperm.  The zygote proceeds to multiply by cellular replication.  Implantation into the wall of the uterus normally occurs four to six days after fertilization.^[39] 

If fertilization is accomplished outside the body (in vitro fertilization), the cellular mass is cultured until it reaches the eight cell stage (about seventy two hours after fertilization).^[40]  At this point, the cellular structure (now called a blastomere) may be placed into a uterus or into a fallopian tube in hopes that it will implant into the uterine wall and continue developing.^[41]

Alternatively, at the eight cell stage, the blastomere can be frozen in liquid nitrogen.^[42]  The blastomere is also generically referred to as an embryo or pre-embryo.  If frozen, the mass is generically termed a frozen embryo.  The frozen embryo can later be thawed and placed into a fallopian tube or into a uterus to enable implantation and development into a human fetus.  The process of development within the uterus (or womb) is known as gestation.

Medical nomenclature changes from an eight cell blastomere to a cystic blastocoele^[43] (fluid filled area with the cellular mass), and then to an embryo.  Biologically the blastocoele becomes an embryo when a condensation of cells, known as the “primitive streak” appears; the primitive streak develops about ten to twelve days after fertilization.^[44]

When the developing embryo reaches a crown-rump length of five centimeters (roughly 2 inches), it weighs approximately eight grams.^[45]  This occurs at the end of the eighth week and the embryo has now developed into a fetus.^[46]

B.            The Procedures of ART

Procedures include artificial insemination, in vitro fertilization, and pre-implantation surgeries known as GIFT, ZIFT, and TET.^[47]  Artificial insemination is the placement of semen (sperm) into the uterus opening (cervix or cervical opening) using a tube conduit (cannula).^[48]  This semen may be fresh (ejaculate) or may be from previously frozen and recently thawed semen.^[49]  The sperm cells in the semen travel up through the uterus and into the fallopian tubes where fertilization occurs.  The fertilized ovum, now a zygote, floats back down the fallopian tube into the uterus, where it implants into the uterine wall.

“In vitro fertilization”^[50] (IVF) literally means “fertilization in a glass.”  In vitro fertilization is accomplished by combining sperm and an ovum in a petri dish where fertilization occurs.  When the nuclei (actually called pro-nuclei) of the sperm and the ovum have fused, a zygote has formed.  This zygote made be placed into the fallopian tube using an abdominal laparoscope, a procedure known as ZIFT.^[51]  TET^[52] is a procedure where an embryo, fresh or thawed, is placed into the fallopian tube through an abdominal laparoscope.  Most commonly, direct embryo insertion is performed wherein the embryo is inserted through the cervix into the uterus using a cannula, just as is sperm in artificial insemination.  The direct procedure does not involve an anesthetic and has almost none of the infection risk which accompany laparoscopic procedures.

III. EMBRYOS AS PROPERTY, PERSONS, OR “SOMETHING IN BETWEEN”

Although federal law appears to recognize an infertile woman’s right to procreate using ART,^[53] it is less than clear what rights, if any, fertilized (combined) gametes, i.e., those potentially capable of developing into human beings, enjoy under the law.  On one level, the “building blocks” of an embryo, gametes (e.g., sperm and ova), are treated as mere “property” under the law.^[54]  As a consequence, “donated” sperm relieves the male donor of all rights and responsibilities for subsequent use.^[55]  However, unless the donation involves a third party intermediary like a sperm bank, a question may arise whether providing the semen specimen included the intent to relinquish all parental rights.  For example, a California statute provides that the donor of semen supplied to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived.^[56]  In a case where the semen specimen provided directly to a woman for her self administered artificial insemination, the semen provider was granted paternity rights for the resulting child.  The court held that the woman’s failure to utilize a physician intermediary, as provided by statute, precluded her claim for exclusive parental rights.^[57]

A.            Liability of a Sperm Bank

A sperm bank exemplifies the classic third party intermediary.  Although frozen sperm may be stored by the owner for possible future use, more commonly the sperm bank pays the sperm donor^[58] to provide a specimen which then becomes the property of the sperm bank.  The donor signs a contract relinquishing all rights to the sperm.  The sperm may be cryopreserved for future commercial sale by the sperm bank.

The sperm bank is liable in negligence for mistakes made in record-keeping when a recipient receives semen which is not that of the purported donor.^[59]  In addition, the question of whether the commercial provider of the sperm also is liable for negligent infliction of emotional distress (“NIED”) for mental distress caused by insemination with semen not selected by the recipient was answered in Harnicher v. University of Utah Medical Center.^[60]  The court in that case held as a matter of law that, because no physical injury occurred to the wife or child, no cause of action in NIED could lie.

The question of whether cryopreserved semen could be the subject of a devise in a Will was litigated in 1993.^[61]  A divorced attorney with two adult children committed suicide and devised his cryopreserved semen to his girlfriend, accompanied by a letter indicating his intention that she produce his posthumous offspring.^[62]  The court held the frozen sperm to be the decedent’s “property” and thus, subject to testamentary disposition.  In so doing, the probate court specifically recognized that it was “forging new frontiers because science has run ahead of the common law.”^[63]  The court went on to add that it needed “some sort of appellate decision telling us what rights are in these uncharted territories.”^[64]  

B.            Ova “Banks”: Now a Technological Possibility

Until recently, ova extracted from the ovaries required immediate fertilization because storage was not technically possible.^[65]  When implanted into the same woman’s uterus (such as might occur in a woman with obstructed fallopian tubes), the woman would necessarily be the genetic mother and the gestational mother (the birth mother).  Where the ovum is obtained by a another woman, fertilized by sperm of the intended father, and implanted into wife, the wife is the gestational/birth mother but not the genetic mother. 

This latter situation presented itself in McDonald v. McDonald,^[66] a New York divorce and custody dispute.  The ovum was obtained from another woman, fertilized with husband’s sperm, and implanted into the wife’s uterus.  The husband claimed that, because the wife was not genetically related to the child, she was not the mother and therefore not entitled to custody or visitation rights.^[67]  The court held that, because the ovum was “donated,” any rights or claims of the genetic mother were severed.^[68]  Because a child can only have one legal mother, the gestational mother (the soon to be former wife) was held to be the natural and legal mother, entitled to custody and visitation rights equal to those of the father.^[69]  Essential to the holding was the court’s finding of “donation” of the ovum by the egg provider.

Thus, in the past gamete Cryopreservation had been limited to sperm.  Now elective cryopreservation of ova provides the ovulating female the option of cryopreserving her eggs for own future use or of donating the frozen eggs for another’s use.  The procedure portends the establishment of ova banks where consumers can select preferred maternal phenotypes,^[70] just as consumers now may choose between desired sperm donor phenotypes.

C.            Embryos

While male and female gametes are considered property, zygotes and embryos can be considered property, persons, or something in between property or persons.  The classification applied will govern the viability of ART contracts^[71] and the rights of ownership and control of the fate of the embryo.

For example, in one case a California couple went to a Virginia fertility clinic where several of the wife’s ova were fertilized with the husband’s sperm.^[72]  Two attempts at implantation were unsuccessful, and the remainder of the embryos were cryopreserved.  Later the couple sought to have the frozen embryos transferred to a California fertility clinic for possible future implantation.  The Virginia fertility clinic refused to transfer the couple’s frozen embryos.  The court held the frozen embryos to be the “property” of the couple.^[73]  As their “property,” the court ruled the couple had a right to have the embryos transferred.^[74] 

This holding sustains the American Fertility Society’s Ethical Statement on In Vitro Fertilization that embryos are the “property” of the gamete providers.^[75]  As such, the property owners had the right to decide, at their sole discretion, the disposition of their property.

The only State to pass legislation attempting to regulate the legal rights provided to embryos is Louisiana.^[76]  It declares that embryos are “persons” entitled to all the usual protections of any “juridical person ...unless an IVF fertilized ovum fails to develop over a thirty-six hour period, except when cryopreserved.”^[77]  Specifically, the statute states that the fertilized human ovum is deemed to be a biological human being “which is not the property of the physician which acts as an agent of fertilization, or the facility which employs him, or the donors of the sperm and ovum.”^[78]  If the IVF gamete providers renounce, “by notarial act,” their parental rights for in utero implantation, the embryo thereby becomes available for adoption.^[79]  In this circumstance, the physician becomes the temporary guardian of the embryo “person.”  The physician’s responsibility to safeguard the embryo is only relieved by the court appointing a “curator” to guard the interests of the embryo awaiting adoption.^[80]

Rejecting both the property and person characterizations of embryos, many jurisdictions have adopted the “special respect” status accorded embryos by the Tennessee Supreme Court in Davis v. Davis.^[81]  The Tennessee Supreme Court concluded that “pre-embryos”^[82] are not, strictly speaking, either “persons” or “property,” but occupy an interim category that entitles them to special respect because of their potential for human life.^[83]  The gamete providers have an ownership interest in that they have decision-making authority concerning disposition of the embryos, within the scope of the applicable law.  This position appears to give courts of equity maximum flexibility in deciding the difficult issues of, among others, ownership and disposition of embryos.

IV. LIABILITY RESULTING FROM THE CONTROL AND OWNERSHIP OF CRYOPRESERVED EMBRYOS

The potential liability resulting from the control and ownership of embryos may turn on the legal status afforded to an embryo.  For example, if an embryo is treated as mere “property,” the gamete providers perhaps may have a cause of action for conversion for the mishandling of the embryo.  If, on the other hand, the embryo is deemed a “person,” there may be a cause of action for injury or destruction of the embryo under the same common law theory as damages for mishandling the body of a close relative. 

Some courts appear to avoid the issue altogether.  In one case, a Virginia couple brought a cause of action for negligent infliction of emotional distress when their newly created embryos were washed an with albumin solution contaminated with the virus of Creutzfeldt-Jakob disease.^[84]  An FDA letter directing withdrawal of the albumin had been overlooked by the IVF clinic.^[85]  Washing the embryos in the contaminated albumin rendered the embryos unusable.  The district court held that, because the Plaintiffs themselves had not sustained physical injury, there was no cause of action for negligent infliction of emotional distress.^[86]

Other courts have recognized a cause of action for emotional distress for the mishandling or destruction of embryos.  Indeed, the first purported attempt in America at IVF and embryo freezing occurred in the early 1970s at no less a prestigious institution than Columbia Presbyterian Hospital in New York.^[87]  Believing that IVF was unethical and immoral, the department chair unilaterally destroyed the embryo when he learned of the planned implantation.  He did this on his own initiative and without notice or consultation with the couple or the doctors involved.  A year later, the couple sued the department chair and Columbia Presbyterian for intentional infliction of emotional distress.  This ignominious inauguration of frozen embryo IVF in America resulted in the jury awarding the couple $500,000 in damages.^[88]

Oftentimes embryos become the subject of dispute between the two gamete providers.  Two state supreme courts have ruled on the ownership and control of cryopreserved human embryos in divorce settings.  In 1992, the custody of the frozen embryos of Junior and Mary Sue Davis was decided by the Tennessee Supreme Court.^[89]  The court held that, absent prior agreement of the embryos’ disposition, the male gamete provider has equal rights to determine the fate of the couple’s frozen embryos.^[90]  The court reasoned that the male gamete provider husband had no right to demand their embryo be implanted into his wife.^[91]  Likewise, the female gamete provider had no right to require the male gamete provider to become a father.

While Mary Sue initially had wanted the embryos for her own future use, by the time the court heard the case she had changed her mind and professed a desire to donate the embryos for adoption by another couple.  The court weighed Junior Davis’s interest in avoiding parenthood against Mary Sue’s interest in donating the embryos to another couple for adoptive implantation.  The Tennessee Supreme Court concluded that disputes involving the disposition of embryos produced by IVF and preserved should first be resolved by the gamete providers.^[92]  Absent that resolution, their prior agreement should control.  In the event there was no prior agreement, the interests of the parties should be balanced.  Assuming the other party has a reasonable possibility of achieving parenthood by means other than by using the disputed embryos, the party wishing to avoid procreation should prevail.^[93]  Thus, Junior Davis was granted ownership and control of the frozen embryos.^[94]

In a very recent case, New York’s highest court faced a situation similar to that in Davis.  In Kass v. Kass,^[95] the former wife demanded sole custody of five frozen embryos and contended that “these were her only chance for genetic motherhood.”^[96]  The former husband objected to the burdens of unwanted fatherhood.  A woman’s constitutional autonomy was implicated only upon pregnancy with the implanted embryo.  The New York Court of Appeals agreed with the Davis holding that the parties’ pre-IVF agreement controls.^[97]  Thus, per this prior written agreement, the embryos were donated to an IVF program where they could be used for legitimate research purposes.

The status of embryos of decedents received notoriety when a California couple died in a plane crash leaving behind several frozen embryos.^[98]  The couple died intestate, leaving an estate valued at eight million dollars.  The Australian government, having jurisdiction over the embryos, ultimately decided that the embryos could be donated for adoption without any rights of inheritance.^[99] 

Inconsistent with this decision is California Probate Code section 6407 which states that “relatives of the decedent conceived before the decedent’s death but born thereafter inherit as if they had been born in the lifetime of the decedent.”^[100]  An embryo conceived during the decedent’s life but implanted some months or years later would appear to have the rights of a pretermitted heir.  This issue has not yet been litigated, but such child resulting from previous frozen embryos appear to have standing to test the statute.

No state has regulated or proscribed embryo donation for adoption.  Indeed, this has been the source of triplets for one New Jersey couple.^[101]  The fate of embryos not donated for adoption, but abandoned by their progenitors, is less certain.  Some scholars believe that if embryos are considered property, the state laws of abandoned personal property should apply to determine the fate of the embryos.^[102] 

Great Britain assumed governmental control over frozen embryos when promulgating a law^[103] providing for the destruction of abandoned embryos.  The British government announced that three thousand frozen embryos more than five years old,^[104] unclaimed by August 1, 1996, would be destroyed.  Italian doctors offered to purchase and transport these embryos to Italy for implantation into women willing to receive them.^[105]  The Catholic Church denounced the planned destruction as “prenatal massacre.”^[106]  On August 1, 1996, the British destroyed the three thousand embryos as scheduled.  Britain has subsequently amended its law to require ten years of abandonment mandating embryo destruction.  However, Britain has not recanted from its position of governmental control of abandoned embryos.^[107]

In contrast, the state of Louisiana has provided the destruction of frozen embryos to be unlawful.^[108]  Under Louisiana law, the control over the frozen embryo vests in the IVF physician as the temporary guardian of the embryo, if the parents do not assume that responsibility.  This control and stewardship of the frozen embryo continues until either adoptive implantation occurs, or the court appoints a “curator” for the embryo who then controls the fate of the embryo.^[109]  Frozen embryos may not be destroyed under the Louisiana statute.^[110]

V. GENDER OR SEX SELECTION OF OFFSPRING

Selective pregnancy reduction, a medical procedure used in multiple pregnancies, has been used to select the gender of the fetus brought to birth.  The euphemistic “selective pregnancy reduction” can more honestly and accurately be labeled sex or gender selection abortion.^[111]  There is an intuitive disfavor accompanying this mode of gender selection.  Fortunately, an advance in ART apparently will render the offensive practice obsolete.  Scientists in 1996 published articles on the availability of a technique to separate sperm of mammals into those carrying an X chromosome and those containing a Y chromosome.^[112]  In February of 1998, a group of Spanish scientists demonstrated that the fluorescent in-situ hybridization (FISH) technique would produce 80 to 90% purity for X spermatozoa and 60-70% for Y spermatozoa.^[113]

This remarkable advance resulted in the Genetics and IVF Institute, based in Fairfax, Virginia, reporting an 85% success rate in selecting girls (13 of 14 pregnancies) and a slightly lower rate of success in those desiring male fetuses.^[114]  One obvious benefit of this procedure is that it enables parents to avoid having children with sex-linked or X-linked diseases, such as common hemophilia and a progressive blindness known as X-linked retinitis pigmentosa, simply by selecting female offspring.  Among the troubling aspects of this new technique is a strong preference in some cultures for male offspring and the social disruptions this may engender.  The authors foresee a plethora of scholarly articles in the near future regarding the ethical and moral aspects of gender selection using this new ART technology.

V. REGULATION OF IN VITRO FERTILIZATION, EMBRYO RESEARCH, AND THE DISPOSITION AND SALE OF EMBRYOS

A.  Federal Regulation

In 1992, the Fertility Clinic Success Rate and Certification Act became effective.  The Act requires ART clinic programs to report their success rates to the Centers for Disease Control (CDC) by sending the data through the Department of Health and Human Services.  Standards for reporting pregnancy success rates are to be established by the CDC.  In the past, voluntary reporting often led to exaggerated claims of success.  These success rates are to be made available by the CDC to the general public.  Thus, the public desiring ART would have a more accurate prediction of the chances to obtain a live baby.

Another provision required the CDC to develop a model program for the certification of IVF laboratories, which could be adopted by each state.  Certification would theoretically maximize the quality of IVF, assure consistent application of established procedures, and guarantee accurate reporting.

Unfortunately, the program lacked implementation funding until 1996, when a mere one million dollars was allocated by HHS to the CDC.  While the work has begun, to date there have been no model regulations promulgated or reports of clinic success available from the CDC.

Federal funding for embryo research has run onto a regulatory brick wall.  In 1993, the National Institutes of Health Revitalization Act^[115] provided for the elimination of the HHS Ethical Advisory Board.  While the Board had specifically concluded that embryo research was theoretically ethical, NIH never allocated any funds for embryo research.  Elimination of this Board evidently was a signal to NIH to proceed with funding embryo research experiments.  Ever cautious and politically prudent, NIH convened another group of experts, the Human Embryo Research Panel,^[116] consisting of experts in the fields of medicine, law, ethics, and public policy.  On the basis of this panels recommendation to fund embryo research, including intentionally creating embryos solely for research purposes, the Advisory Committee to the Director of the NIH advised the NIH Director to begin funding research.  In response, President Clinton directed the NIH not to allocate any funds for embryo research.  Subsequently, Congress passed Public Law 105-78^[117] statutorily prohibiting the use of federal funds for embryo research of any kind, including destroyed, discarded, or otherwise unusable embryos.  Thus, while the law proscribes the use of federal funds for embryo research, there is no federal legislation regulating embryo research in the private sector.  As a result, whatever beneficial results are distilled from private sector embryo research are likely to cost the American public a great deal more due to commercial patents.

B.  State Regulation

All three of the state statutes criminalizing embryo experimentation which have been challenged in federal court have been held unconstitutional.  The Fifth Circuit examined a Louisiana abortion statute criminalizing experimentation on any embryo or fetus unless such experiments were therapeutic.^[118]  The Court found the terms “experiment” and “therapeutic” to be unconstitutionally vague. 

The Tenth Circuit Court of Appeals reviewed a federal district court decision invalidating a Utah statute criminalizing embryo or fetus experimentation on grounds that the use of the terms “experimentation” and “benefit” were unconstitutionally vague.  Finally, the Northern District of Illinois held the failure to define the term “therapeutic” in the Illinois statute criminalizing embryo experimentation rendered it unconstitutionally vague.^[119]

Subsequently, Louisiana^[120] and Pennsylvania^[121] passed laws criminalizing embryo experimentation, all containing more specific definitions of the terms previously declared vague.  North Dakota^[122] and Rhode Island^[123] both maintain statutes criminalizing aspects of embryo experimentation.  These statutes have not been subject to federal court constitutional challenges.

Florida,^[124] Massachusetts,^[125] Michigan,^[126] and Minnesota^[127] ban non-therapeutic embryo research.  New Hampshire explicitly limits the maintenance of non-frozen embryos outside the uterus to fourteen days and prohibits the transfer of research embryos to a uterine cavity.^[128]

Seven states and the District of Columbia specifically prohibit the sale of embryos.^[129]  Georgia permits payment for embryos to be used for health services education.^[130]  Michigan and Rhode Island prohibit payment for unlawfully used or transferred embryos.^[131]  Four other states specifically prohibit the sale of embryos for research purposes.^[132]

The regulation of ART has been lax, consistent with an apparent fundamental procreation “right of access” to ART.  The U.S. Supreme Court has not yet ruled whether procreational privacy rights extend to the non-coital procedures of Artificial Reproductive Technologies.  Assuming these rights apply to non-coital reproduction, one would expect the Supreme Court to extend the onerous strict scrutiny standard of review to governmental regulation. 

Few states have attempted general regulation of ART.  The most benign attempt is Pennsylvania’s requirement that ART clinics file reports on the number of personnel employed, and the number of eggs fertilized, implanted, and discarded at any given clinic site.^[133]  Virginia and Massachusetts require written informed consents signed by ART patients before ART can be undertaken.  These consents must contain information specifying the success rates of the particular clinic.^[134]

C.  Industry Self-Regulation

Self-regulation has occurred primarily through the American Society for Reproductive Medicine.^[135]  This organization developed laboratory guidelines and clinical standards which members are expected, but not required, to follow.  Membership, as well as adherence to the promulgated guidelines, is voluntary.  The Director of the CDC, Dr. William Roper, testified^[136] that ninety percent of clinics were voluntarily reporting their success rates as of 1991.  However, the system lacks an audit mechanism assuring the accuracy of reported data.^[137]

VII. Surrogacy

A.            Traditional Surrogacy Contracts

Traditional surrogacy^[138] involves a contract between an infertile couple (H and W, for example) and a fertile woman (surrogate).  In the traditional surrogacy contract, the surrogate agrees to be inseminated with husband’s sperm and to carry the pregnancy to term.  After the birth of the baby, the surrogate promises to relinquish all rights to the baby, transfer the baby to H and W, and facilitate the wife’s adoption of the baby.^[139]  For this, all the surrogate’s expenses are paid by H and W in addition to a fee for the surrogate’s services.  These traditional surrogate contracts have not been well received in the common law courts.

The first case to reach a state supreme court occurred in 1988, in In re Baby M.^[140]  The court was asked to determine the validity of a contract providing a new way to bring a child into a family.  In addition to expenses, the surrogacy contract provided for a fee of $10,000.00 for the woman’s services.  For this consideration, the woman promised to be inseminated with the contracting party husband’s sperm and to carry the conceived child to birth.  She promised to then deliver the child to the husband-father, and assist with any formalities of adoption by the wife.  However, after the child was born, the gestational mother refused to honor the contract and demanded custody of their child.  The husband and wife sued for specific enforcement of the contract. 

The trial court held that New Jersey statutes governing adoption, termination of parental rights, and the prohibition of the payment of money in connection with adoption did not apply to surrogacy contracts.^[141]  The trial court held the surrogacy contract valid and ordered specific performance of the contract.^[142]  The trial court granted the husband sole custody of the child,^[143] severed parental rights of the surrogate, and granted adoption of the child by the wife.^[144]

On appeal, the New Jersey Supreme Court reversed.  The Supreme Court invalidated the surrogacy contract, holding that it conflicted with the same laws the trial court found inapplicable.  Furthermore, the Supreme Court held that the payment of money to a surrogate mother was illegal, contrary to public policy, and potentially “degrading to women.”^[145]  While the Court granted custody to the father, it voided the mother’s parental rights, and the wife’s adoption of the child, and declared the surrogate to be the child’s natural and legal mother.^[146]  However, the Court stated that where a woman “voluntarily and without payment agrees to act as a surrogate, provided she is not subject to a binding agreement to surrender her child, no New Jersey law is offended.”^[147]

A few years later, a California Fourth District Court of Appeal ruled on the validity of “traditional surrogacy” contracts in California.^[148]  First, the court distinguished traditional surrogacy from an earlier California Supreme Court case addressing “gestational surrogacy.”^[149]  The court of appeal relied on the California Family Code requirement that consent for adoption be given in the presence of a licensed social worker.^[150]  Because traditional surrogacy contracts necessarily are entered into before the child is born, they could not comply with the California Family Code provision.  Consequently, traditional surrogacy contracts are invalid in California.^[151]  Of course, a voluntary relinquishment of parental rights by the mother after the child’s birth, in compliance with the Family Code, would be permitted because the elements of a statutory adoption would be satisfied.

The settled common law provides that traditional surrogacy contracts are invalid or unenforceable.  Slight unsettling of the common law occurred in the 1998 Connecticut Supreme Court case of Jane Doe v. John Doe.^[152]  The couple’s advertisement for a surrogate in their local newspaper resulted in a woman’s agreement to serve as their surrogate.^[153]  Of consequence was the fact that the surrogate was also married and living with her husband at the time.

Not a couple to waste perfectly good medical insurance premiums, John frequently accompanied the surrogate to her pre-natal doctor visits where the surrogate assumed Jane’s identity, using Jane’s name and Jane’s social security number.  Upon admission to the hospital for delivery, the surrogate identified herself as Jane and the birth certificate indicated Jane’s name as the mother.  True to her bargain, the surrogate delivered the baby to John and Jane upon leaving the hospital, never to bother the couple again.

The apparently successful ruse terminated when Jane filed for divorce and requested custody of the now fourteen year old child.  John countered with the uncontested fact that Jane was not the genetic mother and that Jane had never adopted the child.  The trial court held that the child was not an issue of the marriage and thus it had no subject matter jurisdiction to determine the custody dispute between John and Jane.

To complicate matters, the surrogate was married and living with her husband during the course of the pregnancy and delivery.  Connecticut law provides that a child born to a married woman living with her husband is a presumed child of the (surrogate’s) marriage.  The trial court concluded that this presumption had not been rebutted by the requisite clear and convincing evidence.  At that point, it appeared that neither John nor Jane could be declared the child’s legal parent.

After the trial court’s ruling that the child was not a child of John and Jane’s marriage, John brought a motion in probate court to be declared the child’s father and to sever any (now uncontested) parental rights of the surrogate and her former husband.  This motion was granted by the probate court.  The trial court subsequently ruled that it, the trial court, did not have jurisdiction to decide custody and thereby accepted the probate court’s action.  Thus, the trial court recognized the child’s custody to be with the father by default.

On appeal, the Connecticut Supreme Court reversed and concluded that the trial court did have subject matter jurisdiction over the custody matter.  Further, the Court found  the statutory presumption of a child’s best interest to be with the natural parent did not apply.  The case was remanded back to the trial court for a determination of child custody solely based on the best interests of the child.^[154]  While specifying that Connecticut’s equitable parent doctrine did not apply to the facts of this case, the court strongly suggested that the wife should receive custody of the child.  This, of course, is exactly the application of the equitable parent doctrine.

This case suggests that the invalidity of traditional surrogacy contracts does not preclude the non-gestational, non-genetically related wife from gaining custody of the child.^[155]  This is, indeed, new law.  The Court here suggests that the best interests of the child test trump all common law and statutory law.  Evidently, the court would vest complete equity power in the trial courts as regards child custody whether or not the child is an issue of the marriage.

The next year, 1998, the Connecticut Supreme Court became the subject of another controversial holding.  In Mary Doe v. John Roe,^[156] the Supreme Court ruled on whether the Superior Court (general jurisdiction trial court) had subject matter jurisdiction to render judgment in accordance with a stipulated agreement reached in Probate Court.  That post-baby birth settlement agreement included a promise by the traditional surrogate mother to consent to the termination of her parental rights for additional consideration over that provided in the traditional surrogate contract. 

Here, a traditional surrogacy contract between a husband and a surrogate resulted in the birth of a healthy baby girl.  Four months later, the surrogate mother filed a motion for habeas corpus, in probate court, seeking custody of the child.  She also filed for declaratory judgment, requesting a determination that the surrogacy contract was void as both against public policy and as a coercive contract allegedly signed under duress and false pretenses.  The father counterclaimed, asking the Court for specific performance of the surrogacy contract.  During the course of the litigation, a settlement was reached in which the surrogate mother agreed to relinquish her parental rights for additional consideration.  The probate court accepted the settlement agreement, terminated the surrogate’s parental rights, and authorized the beginning of proceedings for step-parent adoption. 

Because the surrogate refused to sign the adoption papers or relinquish custody of the child eight months later, the husband and wife filed a motion in superior court asking the court to hold the surrogate in contempt for failing to comply with the terms of the settlement agreement.  The surrogate countered with a motion requesting the court to declare the agreement to be a nullity as based on a void surrogacy contract.

Ultimately, the Connecticut Supreme Court determined that the superior court had jurisdiction to enforce the settlement agreement and to order its specific enforcement.  This case suggests that if a surrogate sues to invalidate a traditional surrogacy contract, it would be prudent for the husband and wife party to delay the case until the baby’s birth.  After the birth of the baby, a surrogate’s judicially accepted settlement providing for the “voluntary” termination of her parental rights (in consideration for more money, of course) would be enforced and husband and wife would become the legal parents. 

Thus, even though a traditional surrogacy contract would be unenforceable, the effect of enforcement may be attained through a settlement agreement which will likely include the original pecuniary consideration, plus.  This apparently does not violate the prohibition against “buying a baby” adoption laws.  The Connecticut courts will view this type of settlement as a valid accord and satisfaction of a disputed claim.  The critical difference is the post-birth settlement agreement compared to a pre-birth surrogacy contract.

B.  Gestational Surrogacy Contracts^[157]

Gestational surrogacy differs significantly from traditional surrogacy.  In gestational surrogacy, an ovum is fertilized with sperm in vitro.^[158]  The zygote is grown into an eight cell (or more) organism (embryo) where it is either placed into the uterus of a woman unrelated to the gamete providers, or frozen for such future use.  The gestational surrogacy contract occurs between the couple desiring to bring a child into the world and the uterus provider who is genetically unrelated to the embryo.   The gestational surrogate provides the incubator facilitating the development (gestation) of another man and woman’s genetic child.^[159]

California's landmark case of Johnson v. Calvert^[160] was the first to address the enforceability of gestational surrogacy contracts.  Crispina Calvert underwent a hysterectomy a few weeks prior to her marriage to husband Mark.  Mark and Crispina both desired to beget their own child.  Although without a uterus, Crispina’s functioning ovaries continued to produce healthy eggs.  A sympathizing co-worker of Crispina’s mentioned this sad situation to a friend of the co-worker who suggested that she, the co-worker’s friend, could serve as the couples’ surrogate.  The gestational surrogacy contract provided that for a fee,^[161] the surrogate, Ms. Johnson, would have Mark and Crispina’s in vitro produced embryo implanted into her uterus, would carry the fetus to term, and would relinquish all parental rights after the birth of the child.

Just before delivery, a dispute arose over the financial terms of the contract.  Ms. Johnson threatened to refuse give up the baby after the baby was born.  The Calverts sued to be declared the child’s legal and natural parents.  Ms. Johnson sued to have the contract declared to be an unenforceable surrogacy contract.

The trial court ruled in favor of the Calverts and ordered any parental rights of Ms. Johnson terminated.  The Court of Appeal^[162] unanimously affirmed, holding that a woman who agrees to have a couple’s fertilized egg implanted in her womb is neither the natural nor legal mother of the child.  The gamete suppliers are deemed the natural and legal parents of the child.  Further, the Court of Appeal held that the surrogate was not deprived of any constitutionally protected interests.

The California Supreme Court affirmed the holdings of the two lower courts.^[163]  California’s Uniform Parentage Act^[164] was held inapplicable since, under the Act, a woman could claim legal motherhood by either giving birth or by proving genetic relation to the child with blood tests.  The court declared that its decision was governed by the “intent of the efforts of the parents” by which "the child would not have otherwise been born.”^[165]  The court noted that “the parties’ aim was to bring Mark and Crispina’s child into the world, not for Mark and Crispina to donate a zygote to the surrogate.”^[166]  

The Court stated that all the parties realized that a pregnant woman has a constitutionally protected right to abort any fetus which she is carrying, consistent with current law.  Any promise abrogating that right would be unenforceable.  Additionally, the Court opined that “gestational surrogacy contracts do not exploit women of lower economic status any more than any other poorly paying and undesirable employment.”^[167]  Therefore, “gestational surrogacy contracts are not unconscionable or coercive as a matter of law.”^[168]

The dissenting justice in Johnson concluded that the satisfaction of the strong desire to have one’s own genetically related child was not worth the social price of the surrogacy arrangement.  He would have the case remanded to the trial court where the surrogacy contractual dispute would be settled on “the best interests of the child” basis.^[169]  He cautioned that the magnitude and severity of public policy considerations demand immediate legislative attention and action.^[170]

An Ohio court found the state’s statutory birth registration inapplicable in a gestational surrogacy arrangement.  In Belsito v. Clark,^[171] the wife had also undergone a hysterectomy just before marriage.  Knowing of the couple’s yearning to have a child, the wife’s sister agreed to gestate the couples in vitro produced embryo, without compensation.  As the pregnancy neared term, the couple learned of an Ohio law providing that if the birth mother is not married to the father, the child is officially illegitimate.  Desperate to avoid stigmatizing their child as illegitimate, the genetic mother (wife) and genetic father (husband) filed a motion requesting a declaratory judgment finding them to be the legal and natural parents of the soon to arrive baby.

The Court found Ohio’s birth registration statutes inapplicable in a gestational surrogacy setting.  Consistent with Johnson, the Belsito Court noted the gestational mother was genetically unrelated to the embryo, and that the genetic providers’ (husband and wife) intent governed whether the child would be brought into being.^[172]  Because the husband and wife provided the child’s genes and because the husband and wife intended to bring the child into being, the Court held the husband and wife to be the natural and legal parents.  Therefore, the birth certificate was ordered to so indicate.^[173]

Perhaps the ultimate gestational surrogacy contract, involving five parties, occurred in the case of Buzzanca v. Buzzanca.^[174]  In Buzzanca, a sterile husband and an infertile wife, desiring a child but wanting to have some choice over the child’s genetic constituency, obtained a donated egg and selected donated sperm for in vitro fertilization.  The resulting embryo was implanted into the uterus of another woman serving as a contractual gestational surrogate.  Thus, neither husband nor wife were genetically related to the embryo derived from an egg donor and sperm donor.  The gamete donors were neither related to the contracting couple nor to the gestational surrogate.

Just before the birth of the child, Mr. Buzzanca filed for divorce.  Claiming she and her husband were the child’s parents, Mrs. Buzzanca demanded paternal child support payments.  Mr. Buzzanca disclaimed any paternal responsibility on grounds that he was not genetically related to the child and that the gestational surrogacy contract was invalid since it was signed after the pregnancy had commenced.^[175]  The surrogate made it clear that her responsibilities were limited to those of a contractual gestational surrogate.^[176]  The gamete providers were donors and had relinquished any rights at the time of their gamete donations.

The trial court examined California’s Uniform Parentage Act and determined that parenthood could be established by giving birth or by genetic relation proven by blood tests.  Because the Buzzancas were not genetically related to the child, the gametes were donated without intent to reserve parental rights, and the gestational mother was only obligated to perform under the terms of the contract, the trial court found that the baby was born parentless!^[177]

On appeal, the Fourth District Court of Appeals held that, under California common law, fatherhood could be established if the husband “consented” to the artificial insemination of his wife.^[178]  The court of appeal held that rule pertinent here.  Since Mr. Buzzanca consented to the in vitro fertilization which was intended to result in a child, he was the lawful father.^[179]  Uncontested, Ms. Buzzanca was held to be the child’s mother.  The child’s procreation was the product of a medical procedure initiated by intended parents.  The court reasoned that, as the legal father, Mr. Buzzanca was entitled to all the rights and responsibilities of fatherhood, including child support.

C.        Statutory Regulation of Surrogacy

Some states have adopted the Uniform Parentage Act (UPA), which appears to apply to surrogacy contracts.  Under the UPA, a parent can be established by either proving a genetic relationship or by the woman bearing and delivering the child.  Applying the Act to a traditional surrogacy situation, the surrogate and the semen provider (usually the husband) are the child’s mother and father.  The wife, since she is neither genetically related nor the birth mother, has no legal parental status whatsoever.  By contrast, in the gestational surrogacy contract, both husband and wife are genetically related to the child, thereby providing the wife with a claim under the UPA.

Presently, only the statutes of Florida specifically address gestational surrogacy.  Florida statutes provide that a gestational surrogacy contract shall be binding if, inter alia, the surrogate is eighteen years old, the commissioning couple is legally married, and the commissioning mother is physically unable to gestate a pregnancy to term.^[180]

Generally, state statutes addressing surrogacy contracts do not differentiate between traditional and gestational surrogacy.  Consequently, one is left with the conclusion that these states’ use of the term “surrogacy” applies to traditional surrogacy contracts, but may or may not apply to gestational surrogacy.

The District of Columbia,^[181] Indiana,^[182] Michigan,^[183] New York,^[184] North Dakota,^[185] and Utah^[186] deny enforcement of all surrogacy contracts.  Kentucky,^[187] Louisiana,^[188] Nebraska,^[189] and Washington^[190] deny enforcement only if the surrogate is to be compensated.  Notably, the Kentucky Supreme Court ruled, in Surrogate Parenting Associates v. Commonwealth,^[191] that compensated surrogate parenting contracts were enforceable.  The Kentucky legislature responded by passing a bill providing for the unenforceability of compensated surrogacy arrangements.^[192]

Florida,^[193] Nevada,^[194] New Hampshire,^[195] and Virginia^[196] statutes specifically provide that unpaid surrogacy contracts are lawful and enforceable.  All require that the intended mother must be infertile.  Additionally, New Hampshire and Virginia require advance judicial approval of the surrogacy agreement and limit who may act as a surrogate.

Arkansas law presumes that a child born to a surrogate mother is the child of the intended parents and not the surrogate.^[197]  Therefore, Arkansas law presumes the validity of surrogacy contracts.

D. Involuntary Surrogacy

The misappropriation of embryos at University of California, Irvine’s Center for Reproductive Health resulted in unwitting gestation of genetically unrelated embryos.  Three fertility expert physicians^[198] intentionally implanted non-genetically related embryos (frozen for future use of the genetic owners) into at least sixty non-consenting women who thought they were being implanted with genetically related embryos fertilized from their ova and their husbands’ sperm.^[199]  These misappropriations of embryos occurred over the period 1988 to 1995. 

As evidence of these embryo thefts became apparent, the Orange County District Attorney refused to criminally charge these physicians with felony theft because felony theft in California requires the conversion of “property” with a value over four hundred dollars.  The prosecutor refused to characterize embryos as property and refused to place a dollar value on an embryo.  Consequently, no criminal charges were brought against these physicians.^[200]

Because several babies were born to mothers gestating embryos owned by and intended for other couples, the question of legal parenthood became an issue.  Under California’s statutory Uniform Parentage Act, a mother can claim maternal rights by either delivering the child or by proving her genetic relationship to the child.  Although the birth mothers in these cases are not genetically related to the child, the woman qualifies for legal status because she has gestated the child.

The birth mother’s husband, however, cannot claim parentage under the Act since he is not genetically related to the baby.  The absence of paternity (genetic fatherhood) may be proven with blood tests.^[201]  Although the husband is not genetically related to the child, under California Family Code section 7540, a husband cohabiting with his wife is the presumed father of a child delivered by his wife.^[202]   Thus, the wife’s husband has a presumptive paternal status.

In Johnson v. Calvert,^[203] the California Supreme Court held that a child may only have one mother.  When two women are able to establish maternity under the Uniform Parentage Act, the law will declare the natural and legal mother to be the woman who “intended to bring about the birth of [the] child [and] raise [it] as her own.”^[204]  The Johnson Court reiterated that the natural and legal mother is the woman who “intended to procreate the child - that is, she who intended to bring about the birth of a child that she intended to raise as her own.”^[205] 

The obvious question in these cases is, did the birth mother intend to “procreate” this child and intend to raise this child as her own?  To “procreate” can mean either to propagate (bring forth offspring) or to reproduce (implied genetic reproduction).  Until recently, biologically, to propagate and to reproduce were synonymous.  Clearly the birth mother intended to gestate and raise her own embryo.  By implication, can one conclude that since this did not happen, the birth mother is not the intended mother and thus loses a dispute over maternity with the genetic mother?

Application of the “intent” test of Johnson leads to the conclusion that the birth mother did not intend to procreate this particular non-genetically related child.  The birth mother’s intent was to bear and give birth to her own genetically related child, which the child in these circumstances clearly was not.

The providers of the gametic sources, the genetic mother and father of the embryo, who thought their embryo was still frozen awaiting their own personal use, have a maternal and paternal claim under the Uniform Parentage Act provable by blood tests.  Their intentions were to bear this child sometime in the future.  Should the fact that another woman unwittingly and unintentionally gestated their embryo deprive them of their genetically related child?  The application of Johnson would likely result in the genetic parents’ rights trumping the (involuntary) gestational surrogate’s rights.  However, Johnson would likely be distinguished because it involved a consensual gestational surrogacy contract.

Should it make any difference how old the child is when the genetic facts are discovered?^[206]  In cases of inadvertent baby switching at hospitals, the age of the child is a factor courts consider in deciding whether to change the custody of the child.  Involuntary surrogacy can be analogized to these switched children cases.  In both situations, the child taken home from the hospital is neither genetically related to the gestating (birth) mother, nor genetically related to her husband.  Intuitively, it seems that the “best interests of the child” considerations of inadvertent “switching” custody disputes should  be applied to cases of involuntary surrogacy.

VIII. CONCLUSION

Artificial reproductive technology scientific advances afford increasing procreational opportunities to America’s one in six couples likely to require infertility services at some point in their lives.  Sperm storage, sperm sex selection, ova storage, in vitro fertilization, and embryo cryopreservation now enable family planning options which would have been considered fantasy only a couple decades ago.  The opportunities also portend huge oscillation in our society involving not only when to have children but what children to have.  The necessarily reactive common law courts are subject to being trumped by reactionary interested factions, such as religious zealots, who have demonstrated increasing influence upon legislators mandate to make informed, well-reasoned, public policy.  However, if past is prologue, our Constitutional protections will trump the special interest’s constraints sanctioning reasonably unimpeded scientific progress in artificial reproductive technology.

Nonetheless, the Authors strongly believe that new, uniform legislation needs to be created which takes into account the rapidly advancing science of ART.  At a minimum, this legislation should strive to develop consistency between the legal and biological definitions of the elements and procedures of ART.