Pregnancy And Medical Developments
Artificial insemination, in vitro fertilization, and embryo transplants have created new opportunities for conceiving children. With artificial insemination, sperm from a donor is introduced into the vagina or through the cervix of a woman by any method other than sexual inter-course. Originally this technique was used when a husband was sterile or impotent, but it is now available to women regardless of whether they are married. For example, a lesbian couple could
use artificial insemination to start a biological family.
The technique of in vitro fertilization gained international attention with the 1978 birth in England of Louise Brown, the first child conceived by in vitro fertilization. This technique involves the fertilization of the egg outside the womb. The embryo is then transferred to a woman's uterus.
Because sperm and eggs can be frozen and stored indefinitely, there are occasional legal disputes over the rights to these genetic materials when a HUSBAND AND WIFE divorce. For example, in Kass v. Kass, 696 N.E. 2d 174 (N.Y. 1998), the New York Court of Appeals determined that the custody of five frozen embryos should be determined by the terms of a contract signed by a couple with a hospital that stored the embryos. The couple had sought to become pregnant through in virto fertilization, but, after several failed attempts, decided to divorce. The husband and wife initially agreed to the terms of a CONSENT DECREE with the hospital whereby the hospital could retain the right to keep the embryos for research purposes. The wife later changed her mind and wanted custody of the embryos. The court held that the consent agreements constituted valid contracts and must be enforced. The court ruled that under the terms of the contract, the hospital should be awarded the embryos for use in research.
Other courts have considered disputes whereby one spouse wishes to use embryos for the purpose of procreation while the other wants the embryos destroyed. Several state supreme courts have held that the right of a spouse who wishes to avoid procreation is superior to the wishes of spouse who wishes to procreate. In J. B. v. M. B., 783 A. 2d 707 (N.J. 2001), for example, the New Jersey Supreme Court determined that a husband's right to procreate was not disturbed by its ruling that remaining frozen embryos from the husband and wife be destroyed according to the wishes of the wife.
Developments in in vitro fertilization led to surrogate motherhood, which has caused legal battles as well. In these cases, a woman agrees to be either artificially inseminated by a spermdonor father or have a fertilized ovum inserted into her uterus. After giving birth, the surrogate mother legally surrenders the infant to the person or couple who will adopt and rear the child. The idea of surrogate motherhood is attractive to some couples because a child born of a surrogate mother will share half or all the genetic material of the parents who will raise the child.
One of the most publicized cases regarding surrogate motherhood is that of Baby M. In 1985, Mary Beth Whitehead agreed to be inseminated with the sperm of William Stern and, upon the birth of the child, relinquish her parental rights to Stern. But once the child was born, Whitehead found that she did not wish to give up the child, a girl who she named Sara. A court battle ensued, during which Stern, along with his wife, Elizabeth, were granted temporary custody of the child they had named Melissa. The court decided that Whitehead's parental rights were to be terminated, and Elizabeth Stern was granted the right to immediately adopt the child. The New Jersey Supreme Court overturned this verdict in part on February 2, 1988, restoring Whitehead's parental rights and invalidating Elizabeth Stern's ADOPTION, but granting William Stern custody of the infant.
Many surrogate mothers are close friends or relatives of the childless couple. However, the practice of commercial surrogate arrangements has increased greatly since the late 1980s. Many major cities have surrogate agencies, which are often run by doctors and lawyers who maintain lists of potential surrogate mothers and help match a woman with a couple wanting to have a baby. Commercial surrogate agencies typically charge a fee of $10,000 or more to make the arrangements, which is in addition to the surrogate mother's expenses and fees, which may range from $10,000 to $100,000.
Commercial surrogate arrangements are not legal in all states, and there is little case law on the subject. Some states declare surrogacy contracts null, void, and unenforceable because they are against public policy. Opponents of commercial surrogacy believe that such arrangements exploit the surrogate mother and turn children into a commodity. They also are concerned that if a child is born with a disability, the adoptive parents may decline to take the child. Finally, there is the issue of the surrogate mother who may not wish to surrender the child after birth.
Other medical developments have also stirred controversy. In 1997, scientists successfully cloned the first adult animal, leading to speculation that the process could be used to clone human beings. Scientists first successfully inserted DNA from one human cell into another human egg, but they do not expect successful human cloning to be possible for several years. The issue has caused heated debates focusing on the scientific, moral, and religious concerns over the possibility that an adult human could be cloned.
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