Global perspective on procreation and parentage by assisted reproduction

The valuable research assistance of several research assistants including Zachary Starr (class of 2007) is gratefully acknowledged. This is based on a paper presented April 7, 2006, at the Capital University Law School Wells Conference on Defrosting the Debate: Analyzing the Nexus Between Adoption & Frozen Pre-Embryos, Sponsored by the National Center for Adoption Law & Policy and the Capital University Law Review.

I. Introduction: Art, Partner Adoption, and the Right to a Child .

Comparative family law is a fascinating area of investigation, for we may learn much about our own legal system, procedures, and substantive family law policies and about how they might be improved, as we hold them up beside the family laws of other nations, societies, and cultures.1The study, discussion, and analysis of laws and policies regulating and cases deciding issues of assisted reproductive technology (ART) has become very popular in the United States recently.2 This symposium issue of the Capital University Law Review will certainly find a receptive audience.

However, the comparative study of family law is also replete with the opportunity and potential for serious misperception, misinterpretation, and misunderstanding. It is very tempting to take foreign nations' laws and policies out of context or to interpret them in light of the assumptions underlying our own legal system, and thereby miss important dimensions of those laws that are hidden in the shadows of the differences in the procedural, structural, substantive, and cultural contexts unique to the foreign legal system. Our very approach, organization, categorization, definition, and questions we ask may reflect assumptions about the law that do not fully apply to-or that even mischaracterize-the issue as it would be viewed from the perspective of persons familiar with or living under the foreign legal system. Even language presents a problem, as English is not the language of the law in most of the 193 sovereign nations of the world.3

Mary Patricia Byrn, The Use of Prebirth Parentage Orders in Surrogacy Proceedings, 39 FAM. L. Q. 633 (2005) (asserting that prebirth parentage orders are potentially useful in surrogacy relationships if no adoption-like proceedings are necessary to give affect to the parties' intent); Susan B. Apel, Cryopreserved Embryos: A Response to "Forced Parenthood" and the Role of Intent, 39 FAM. L. Q. 663 (2005) (discussing the evolving trend of interpreting existing laws, particularly the Uniform Parentage Act, to deny children of cryopreserved embryos from divorced parents the right to a "legal father" and thus depriving these children of otherwise typical financial and economic support); Courtney G. Joslin, The Legal Parentage of Children Born to Same-Sex Couples: Developments in the Law, 39 FAM. L. Q. 683 (2005) (highlighting the treatment of ART children born into same- sex households in recent cases); Cyrene Grothaus-Day, Criminal Conception: Behind the White Coat, 39 FAM. L. Q. 707 (2005) (revealing the "white collar crimes" associated with ART providers in derogation of regulations and rules established by governments); David Adamson, Regulation of Assisted Reproductive Technologies in the United States, 39 FAM.

Thus, we begin with a very large caveat about the limits of our ability to understand fully and translate accurately into our terminology the rules and regulations of foreign legal systems concerning ART and adoption of children of ART.

One common source of misperception in the comparative study of family law is use of inapposite categories or distinctions. Thus, it is important to recognize and distinguish between two major categories of usage of ART which encompass a distinction around which the Wells Conference (Conference) was organized (whether intentionally or unintentionally). One category involved the use of assisted reproduction by infertile, married couples to produce desired children of or for the marriage. The other category involved the use of ART by unmarried individuals, couples, or groups to produce children who will be raised outside of a marital family, without a mother and a father. Whether deliberately or by accident, the use of that distinction in this Conference is perceptive, for the line that distinguishes those two categories constitutes a "fault line" of the social earthquake that is shaking most nations today concerning the reconceptualization of basic, nuclear family relations and a "battle line" in the culture wars that are raging not only in America, but around the world. We will find that this distinction explains the major differences in the regulation of ART by the nations of the world.

One additional caveat: this is an area of law that is changing rapidly. One of the best compilations I found reporting on the practice and regulation of ART around the wor...

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