Artificial Insemination from Donor (AID) – From Status to Contract and Back Again?

Abstract

The last few decades have witnessed dramatic changes in the institutions of family and parenthood and an abandonment of the historical emphasis on their bionormative structures. These changes are the result of societal shifts with respect to public openness and technological innovations that segregate marital relations from sexuality and fertility. The resultant parenthood structures, which depart from traditional spousal and parental models, intensify the ability and need to determine legal parenthood in numerous unprecedented contexts. Sir Henry Maine famously stated that mankind is pacing from status toward contract. This theme has had particular resonance during the past half century in the context of spousal and child-parent relationships. In this article I maintain that with respect to AID we can outline a clear shift from status to contract. Put differently, while the legal role of a donor originally turned on formalistic notions of status, in the twentieth century, the role of the donor was increasingly subject to notions of contract law. I posit, however, that close scrutiny of current legal practices with respect to AID reveals that there is a movement in the law back to status. In conclusion, I argue that this move back to traditional status is improvident and that determining legal parentage by agreement and giving more freedom of contract to parties in an AID situation is a normatively superior method to determine parentage in the context of AID. I will also argue, however, that modern status-based notions should be used to determine the legal and social ramifications of being designated a parent. Lastly, I will bolster this conclusion by exploring recent case law, legislative developments and scholarly literature.

Keywords: family law, contract law, agreement, contract, status, fatherhood, intentional parenthood, intended parent, IVF, artificial insemination, sperm donor, semen donation, AID, same-sex, fertility treatments, assisted reproduction, parentage, parenthood, alternative families, lesbian