Sexuality, Privacy and the New Biology

Abstract

This Article investigates two alternative methods of human conception: Specifically, the artificial insemination of unmarried women for either their own personal purposes of pregnancy without the benefit of marriage or as surrogates for infertile women. Surrogation is evaluated, then, as an analytic complement to the sexual privacy of women who are expressing their sexual freedom through unconventional means to become pregnant.

The conclusion drawn is that an unmarried woman’s fundamental right to privacy or procreation does not encompass a right to either artificial insemination or surrogation. To allow unfettered access to these two methods of conception would - quite simply - undermine the basic foundation of the family in contemporary society which is found exclusively within the relationship of marriage. The courts have, over the course of history, acknowledged the desirability of having a child reared within a traditional family unit. Until that judicial attitude changes and/or states legislate in this area, unconditional use of these alternative methods of conception must be regulated.

It should be noted that since the period during which this Article was written originally in 1983-1984, cultural attitudes have motivated a number of state courts and legislatures to clarify and re-structure normative standards of conduct for use of artificial insemination and surrogation and, as well, define the legal status of progeny born from these methods of reproduction. The original arguments advanced for limiting the use of both artificial insemination and surrogation by unmarried women still retain their merit, however.