In discussing the legal aspects of the practice of artificial insemination, it should be observed, in the first place, that although the process of artificial insemination (hereafter referred to in this article as AI) is not a new one in the medical field, to the law and the lawyer it is an innovation involving new concepts, with no precedent to serve as a guide in the solution of its many problems. The principles of AI were known to the ancient Arabs, and they practiced it upon their horses. Already in 1866 a successful artificial impregnation was performed upon a woman in the United States. However, it is common knowledge that within the last ten years the practice has grown by leaps and bounds, and the general public has become aware of the fact that the clinical procedure of AI has many advantages over adoption. Statistics show that there are over 2,000,000 married couples in the United States who are unable to conceive children in the normal manner, and are, therefore, potentially faced with the appalling degree of marital unhappiness and insecurity which is submerged in an involuntarily barren marriage. Yet, as stated above, society is presently unprepared to cope with the social and legal problems that medical science has thrust upon it by the widespread introduction and use of the practice of AI. Just how widespread the practice is in the U.S. is very difficult, if not impossible, to ascertain, but testimony before a committee hearing of the Legislature of the State of New York in 1951 indicated that there were then about 20,000 children alive in this country through AI. The infrequency of litigation to date is probably not indicative of the future. In all English speaking countries to date four or five cases have been decided by the courts. A brief statement of the legal result of each case might be of interest at this juncture.
Litigated Cases
The earliest case was that of Orford v. Orford, 49 Ontario Law Reports 15 (1921). This Canadian case said that AI by a donor (i.e., a person other than the husband) was adultery.
Hoch v. Hoch (1945), in which a Chicago judge said, by way of dicta, that Al by a donor was not adultery.
Strnad v. Strnad, 78 N.Y.S. 2d, 390 (1948), a decision of the Supreme Court of New York—incidentally, not the highest court of appeal in that State—held that the husband of a woman, who had a child conceived by AI with a donor’s semen, stood in the same position as a biological father for purposes of determining rights of visitation in a custody proceeding. It is interesting to note that after this decision the mother moved to Oklahoma. In that state she obtained a divorce and was given exclusive custody of the child, the court saying that the husband had no right of visitation because he was not the biological father.
R.E.L. v. E.L., an English case decided in 1949, held that the birth of a child by AI, with the husband’s semen, did not prevent the anullment of a marriage when the husband was impotent.
The Dilemma of the Courts The attitude of the courts to the unique set of facts involved in the practice of AI is difficult to determine. Theoretically, at least, Anglo-American courts apply the legal principle of stare decisis (i.e., to abide by, or adhere to, the decided cases), meaning that when the court is confronted by a particular factual situation to which certain legal principles and concepts must be applied, it tries to find a similar case that has already been decided. If such a case is found, courts adhering to the English common law are wont to apply its reasoning to the new one before the bar.
However, in the case concerning AI the method of applying existing law will be of serious concern. For example, AID (i.e., artificial insemination with the semen of a person other than the husband) may be analogized (1) to adultery because it introduces into the husband’s family a child that is not his, or (2) to fact situations held not to be adultery because there was no sexual intercourse, or (3) to adoption because the husband agreed to take the child into his home and assume the duties of parenthood.
Thus, the reader can readily see that the approach taken by the court becomes all-important. Generally speaking, courts, as other human institutions, are quite unpredictable. Many involved factors go into the making of a decision, and even these are more relative than absolute, something that the public does not sufficiently realize.
Legal Problems in AIH
AIH (i.e., artificial insemination with the semen of the husband) is expected to cause few legal problems. Because both husband and wife are the biological parents of the child, there is no question of adultery or illegitimacy. However, one problem peculiar to AIR is this: what to do with the case of a husband who is impotent, but whose wife has borne a child through the use of AIR. In 1948 an English court granted a decree of nullity to a wife on such a factual situation. According to English law the child of an annulled marriage was illegitimate. Since then Parliament has enacted legislation legitimizing the child of an annulled marriage if he would have been legitimate had the marriage been dissolved by divorce rather than by anullment. Most American jurisdictions have statutes of this kind. Those that do not the District of Columbia, Iowa and New York—if they follow the common law, will hold the child of an annulled marriage illegitimate. This constitutes a substantial hazard to the practice of AIH since impotency is both a principal reason for which the technique is performed and grounds for annulment in many states.
In several states the divorce statutes are so worded that they may cause further trouble when couples use AIH to overcome impotency. Although most states recognize impotency as a valid reason for either annulment or divorce, two require impotency which results in sterility. Before AI was developed, all real impotency resulted in sterility, but AIH makes it possible for an impotent husband to become a father. Since sterility is no longer an inevitable result of impotency, these states—Tennessee and Pennsylvania—may want to strike it from their requirements for divorce, particularly in view of the fact that sterility alone has never been sufficient grounds for divorce -all of which indicates that it is used in the divorce statutes of these few states as descriptive of the degree of impotency required, rather than as a necessary requisite in itself.
Legal Problems in AID
It is, however, in the practice of AJD (i.e., artificial insemination with the semen of a donor other than the husband) that numerous legal problems of a serious nature are confronted. These relate to several phases of the law, namely, the criminal law, civil sanctions, the question of inheritance, the legal duty to support, the husband’s right to custody, and the question of admissibility of evidence.
The Criminal Law
If the parties to AID were accused of committing a crime, the charge would most likely be adultery. In determining whether or not AID constitutes the crime of adultery the question of why adultery is a crime must first be considered. We know that the 7th commandment forbids adultery, and although this moral law given by God to Moses extended originalJy only to the nation of Israel, yet most, if not all, nations that have been influenced by Christianity have adopted this rule of human conduct in one form or another. As far as this writer knows, all of our forty-eight states punish adultery, though in varying degrees. Michigan considers it to be a felony, punishable by imprisonment in the state prison for a maximum term of five years. However, it is a fact that not many people are convicted of, or plead guilty to, the offense. The writer spent over seven years in the office of the Prosecuting Attorney of Kent County, Michigan (which includes Grand Rapids ), and he cannot recall more than two or three of such cases. The reason for this is not that the crime is only infrequently committed, but rather that the parties are apprehended only rarely. Besides, the required degree of proof makes conviction extremely difficult.
Since all states and people do not recognize the biblical prohibition against adultery, there have been Sociological rationalizations given for the proposition that adultery shall be considered a crime. It has been said, and rightly so, I believe, that society’s continuous attempt to control voluntary sex expression is the preservation of the family system. Social control of adultery would seem to be especially well explained by this motive, since it always involves marriage partners. No well-recognized society has existed for any length of time without some type of family structure. We all recognize it to be the basic unit of society. If adultery does tend to destroy the family (as it does) then it; control is due to an instinct of self-preservation.
In ancient days, and even at the early common law in England, a wife was considered to be only a chattel. Wives were purchased for money, and adultery seemed to be no more than an economic loss. In more modern times, however, men have AI procedures, it is difficult to see how alienation of affection would result as a practical matter because no sexual intercourse is involved. However, the wife who employs AID without her husband’s consent is certainly risking the introduction of a spurious heir if her husband should remain ignorant of the means of the child’s conception, and the possibility of his jealousy, embarrassment and anger if he learns the truth. Neither of these harms are present if AID is performed with the husband’s consent. The real harm of adulterating the husband’s blood lines is not the introduction of a strange child into the family, because legal adoption does just that, but it is the introduction of that child without consent of the husband. When a husband agrees to his wife’s AID, therefore, he is not consenting to adultery, but rather is destroying one of its bases. Since AID without consent does substantially injure the husband, it would seem to be a violation of the marriage vows.
From a strictly socia-legal standpoint only, and bearing in mind the end sought by control of voluntary sex expression, AID without consent would lead to a breakdown of the family system as we know it, and as God established it, and perhaps bring about the destruction of the race. When performed with the consent and desire of both husband and wife, it will further the interests of the family and race. We must bear in mind that if the family system is to be a force in the preservation of the race, its chief contribution is the creation and development of children. AID enables families, which would otherwise be barren, to perform this function. Since AID is a last resort technique, couples who turn to it must have a great desire to raise a family, a desire that, unfortunately, is not usually a requisite for the conception of children. It could be reasonably expected, then, that the parents of a child born by AID would fulfill the purpose of transforming the infant into a responsible citizen better than most. Furthermore, no reputable physician would perform AID unless the couple appears able, in every way, to give a child a good home. Unfortunately, biological children are not guaranteed such an advantageous environment.
If a specific instance of AID is held to be adultery the doctor, as well as the mother. will probably be found guilty. Practically this would be true because a court that holds AID to be adultery would be interested in stopping the practice, and how better to do this than to impose criminal sanctions upon the doctor? Guilt may be established under either of two theories: first, the doctor may be found to be the actual adulterer because he is in complete control of the procedure, or, secondly, he may be found an accessory before the fact in that he has aided the woman in committing the crime of adultery, and, therefore, guilty as a principal. This is true because many states, Michigan included, make all accessories to crimes, whether before or after the fact, guilty as principals and punishable as such.
(To be continued, with the author’s personal observation)