FERTILITY AND STERILITY威
VOL. 72, NO. 5, NOVEMBER 1999
Copyright ©1999 American Society for Reproductive Medicine
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Received June 10, 1999.
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EDITOR’S CORNER
Collaborative reproduction: an invitation
to legislate?
Susan L. Crockin, Esq.
Newton, Massachusetts
As my own law practice keeps proving to me, infertility programs no longer simply practice
medicine. Instead, they regularly face decisions about parental rights, marital obligations,
physical and psychological fitness, privacy and disclosure concerns, and other interdisciplinary
issues. These issues invite, if not demand, closer collaboration with other professional
disciplines. Before programs find themselves accused of baby selling, unlicensed adoption
facilitation, or just plain malpractice, it’s time to realize just how far out of the private doctor’s
office we’ve stepped and how far into uncharted waters we’ve waded. I’m of the belief that if
we want to make more families and fewer lawsuits, it is more than time to create new,
child-centered policies, laws, and guidelines for collaborative reproduction that, at the same
time, are more protective of patients, third parties, and professionals.
The assisted reproductive technologies (ART) and collaborative reproduction have brought
the unparalleled joy of parenthood to thousands. Unfortunately, they have also given birth to
an increasingly apparent gap between these newly created families and the as-yet-created set
of cohesive legal protections needed to define and protect them. Although the law may never
catch up to medical advances, the rapidly escalating interest in commercialized reproduction
invites us to rethink existing medical and legal models.
Medical treatment for infertility has long been a private matter between doctor and patient.
Except for the most compelling of reasons, individual procreative choices are constitutionally
protected from governmental intervention. However, there has never been an unrestricted right
to create a family by any means possible. Indeed, with the exception of the ART, every
assumption, relinquishment, or transfer of parental rights is defined and limited by law. As the
history and laws of both donor insemination (DI) and adoption illustrate, children and genetic
parents have competing rights and concerns that deserve and demand their own respect and
protections.
Although 35 states have DI statutes, only 5 have egg donor laws, 4 of which also address
embryo donation (1). All of these laws are designed to create and protect an absolute
assumption of parenthood for the recipient(s). All define a minimal role for the donor and
reinforce the longstanding medical model of anonymous sperm donation practices. These laws
have reduced patient and physician future concerns that donors might seek out recipients,
children might seek out donors, or any party might seek out the physician. To a great extent,
they have kept legal disputes over DI to a minimum.
Yet, in an era of growing openness—where DNA testing is commonplace, known donors
are prevalent, and formerly anonymous donors and DI kids are starting to look for and find one
another—the initial rationale for patient privacy at all costs may no longer be persuasive. At
the same time, collaborative parenting options are multiplying almost as fast as embryo cells
and literally redefining the family. With $50,000 egg donors, posthumous sperm removal and
use, embryo donation and creation, and gestational carrier arrangements (often with donor
gametes) procured through the Internet, our older model laws don’t go far enough. It is time
775
to reexamine the assumption that these are private treatment
decisions best left to providers and patients alone. Two cases
(of many) are illustrative (2).
Until an appellate court stepped in to assign her legal
parents, Jaycee Buzzanca was a reproductive technology
created orphan. Conceived as a result of embryo donation
and gestational surrogacy, Jaycee’s intended parents—Lu-
anne and John Buzzanca—separated shortly after her birth.
John Buzzanca refused to pay child support, claiming that he
had no obligations to the child because she was neither born
to his wife nor conceived with his sperm. This left Jaycee
with eight potential parents: the gestational carrier and her
husband; the intended mother and originally intended father;
the egg donor and her husband; and the sperm donor and his
wife.
The lower court reached the startling, but legally under-
standable, conclusion that no one could be considered Jay-
cee’s parents under existing law. Reversing, the appellate
court went out on a legal limb and held John Buzzanca
responsible based on his preconception intent, analogizing
the arrangement to donor insemination. Although enlight-
ened, the court’s opinion did not recognize several compet-
ing concerns. The embryos were from a married Chicago
couple who literally did not remember consenting to embryo
donation after conceiving twins (Jaycee’s genetic siblings).
Their egg donor never intended or consented to her eggs
being used to create embryos for anyone else. The gesta-
tional carrier has since said she wants to raise Jaycee rather
than having her raised by a single mother. The court did note
the absence of legislation, which it called for with some
urgency. Without legal precedent to guide it, the court could
have easily ruled differently.
Another lawsuit signals a very different warning to any-
one providing ART-related services. A traditional surrogate
sued a surrogacy center after the 6-week-old child she bore
for a single man was killed by him. The father had thrown
his son against the wall when he couldn’t stop the child’s
crying. It later turned out the 26-year-old man had just
recently lost his own mother and had no child-rearing expe-
rience. The surrogate claimed the program owed, and
breached, a duty of care to her.
Applying traditional law, a lower court dismissed her suit.
It ruled the program owed her no duty because she was not
its client, and there was no recognizable duty to screen
intended parents for “parental fitness.” Reversing, the appel-
late court found avoiding negligence was not enough. It
ruled instead that “a business operating for the sole purpose
of organizing and supervising the very delicate process of
creating a child, which reaps handsome profits from such
endeavor, must be held accountable . . . because a “special
relationship” exists between the surrogacy business, its cli-
ent-participants, and most especially the child.” As such, the
program owed the surrogate a higher, affirmative duty of
care against foreseeable consequences, including possible
776 Crockin Editor’s Corner
abuse of a child she never intended to raise. This reasoning
easily could be applied to medical programs providing other
collaborative reproductive services.
These two principles, that creating a child creates parental
rights and obligations and that intermediaries in family cre-
ation have duties to biological and also intended parents, are
cornerstones in the world of adoption. Although there are
concededly significant differences between adoption and
collaborative reproduction, there are also substantial similar-
ities and valuable lessons to be learned.
Adoption has always been a child-centered and highly
regulated field. The transfer of legal parentage from birth to
adoptive parent has always been regarded as a legal process
imbued with substantial constitutional safeguards and pro-
cedural protections. Although obstetricians may arrange
adoptions, they can’t complete them with informed consents
or good intentions. Instead, child-placing agencies or profes-
sionals are required and are commonly licensed and
tightly regulated. Multiple obligations to the child (first
and foremost) and to both biological and adoptive parents
are expected.
To ensure against financial inducements, baby buying or
selling is strictly prohibited. State laws typically define and
cap permissible categories of expense reimbursements and
frequently require judicial scrutiny. Adoptive parents are
rigorously screened and must pass physical, mental health,
financial, and criminal background checks. Their motivation
and readiness to adopt is routinely questioned. Biological
parents must provide comprehensive medical and social in-
formation and cannot typically relinquish their rights pre-
birth.
Despite these legal protections, adoption practices used to
look a lot like gamete donation does today. For most of the
past century, adoption was a private, secretive affair, reflect-
ing the prevailing stigmas of unwed pregnancies and bas-
tardized children. Birth mothers were kept from seeing their
child in the mistaken belief they would forget about them.
Placement decisions were made by others and implemented
immediately upon birth. Medical and background records
were minimal. Birth and adoption records were permanently
sealed. Postadoption contact was virtually unthinkable.
Adoption looks significantly different today. The majority
of U.S. adoptions are “open” to some degree. Birth mothers
often select, if not meet, their child’s adoptive parents. With
the increasingly recognized importance of genetics, it is now
standard practice (and legally required) to collect and trans-
mit as much background information as possible about birth
parents and child to prospective adopters. Damages for in-
termediaries’ failure to disclose such information has been
assessed in the millions of dollars (3). Some mandated
postadoption contact, including annual letters and photos for
18 years, is common. State-run registries are prevalent,
where mutually consenting adult adoptees and birth parents
Vol. 72, No. 5, November 1999
may obtain identifying information about one another.
Efforts to establish a federal registry are ongoing. Profes-
sional opinion is virtually uniform that these develop-
ments reflect changes for the better for all involved in the
adoption triad.
What does all this suggest for the future of collaborative
reproduction? I believe we are at an historically unique
intersection of medicine and law. One choice is to try to
continue with the historical DI model of secret, private
decision-making with minimal laws and piecemeal litigation
delineating parentage. This approach defers solely to the
individual wishes of adult patients and their doctors. It also
increasingly imperils physicians and the families they try to
help form. The other choice is to acknowledge and address
the growing complexity of this field, including the interests,
if not rights, of donors, surrogates, and carriers. Most criti-
cally, it recognizes both the rights of the children and the
obligations owed to them. This approach invites a coopera-
tive, interdisciplinary effort to provide legal and societal
FERTILITY & STERILITY威
guidance for these new families and those that help make
them possible.
Few of us like to be told what to do, and physicians have
an understandable distrust of increased regulation of medical
practice. But, we’ve come a very long way out the private
doctor’s office and an even longer way from the private
procreative rights of two consenting adults. Regulation af-
fecting families is a distinct policy issue, with an historic and
compelling claim to societal oversight. With a little wisdom
gained from hindsight, we should be able to avoid the twin
dangers of bad laws or no laws. Especially for the sake of the
children being created, this is one invitation we can’t afford
to ignore.
References
1. Crockin SL. Statutory and case law governing oocyte and embryo
donation. In: Saver MV, ed. Principles of oocyte and embryo donation.
New York: Springer-Verlag, 1998:246 –7.
2. Buzzanca v. Buzzanca, 1998 Cal. App. Lexis 180, Sup. Ct. No.
95D002992; Huddleston v. ICA, Pa.SuperCt, No. 01888 PHL 1996,
8/20/97.
3. See, e.g. Mohr. v. Commonwealth, 421 Mass. 147 (1995).
777