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VOL. 72, NO. 5, NOVEMBER 1999

Copyright ©1999 American Society for Reproductive Medicine
Published by Elsevier Science Inc.
Printed on acid-free paper in U.S.A.

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
Received June 10, 1999. Although 35 states have DI statutes, only 5 have egg donor laws, 4 of which also address
Reprint requests: Susan L.
Crockin, Esquire, 29 Crafts
embryo donation (1). All of these laws are designed to create and protect an absolute
Street, Suite 500, Newton, assumption of parenthood for the recipient(s). All define a minimal role for the donor and
Massachusetts 02460 reinforce the longstanding medical model of anonymous sperm donation practices. These laws
(FAX: 617-332-8670; E-
mail: slcrockin@aol.com).
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,
The opinions and they have kept legal disputes over DI to a minimum.
commentary expressed in
Editor’s Corner articles are Yet, in an era of growing openness—where DNA testing is commonplace, known donors
solely those of the author.
Publication does not imply are prevalent, and formerly anonymous donors and DI kids are starting to look for and find one
endorsement by the Editor another—the initial rationale for patient privacy at all costs may no longer be persuasive. At
or American Society for the same time, collaborative parenting options are multiplying almost as fast as embryo cells
Reproductive Medicine.
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
PII S0015-0282(99)00400-8 gametes) procured through the Internet, our older model laws don’t go far enough. It is time

to reexamine the assumption that these are private treatment abuse of a child she never intended to raise. This reasoning
decisions best left to providers and patients alone. Two cases easily could be applied to medical programs providing other
(of many) are illustrative (2). collaborative reproductive services.
Until an appellate court stepped in to assign her legal These two principles, that creating a child creates parental
parents, Jaycee Buzzanca was a reproductive technology rights and obligations and that intermediaries in family cre-
created orphan. Conceived as a result of embryo donation ation have duties to biological and also intended parents, are
and gestational surrogacy, Jaycee’s intended parents—Lu- cornerstones in the world of adoption. Although there are
anne and John Buzzanca—separated shortly after her birth. concededly significant differences between adoption and
John Buzzanca refused to pay child support, claiming that he collaborative reproduction, there are also substantial similar-
had no obligations to the child because she was neither born ities and valuable lessons to be learned.
to his wife nor conceived with his sperm. This left Jaycee
with eight potential parents: the gestational carrier and her Adoption has always been a child-centered and highly
husband; the intended mother and originally intended father; regulated field. The transfer of legal parentage from birth to
the egg donor and her husband; and the sperm donor and his adoptive parent has always been regarded as a legal process
wife. imbued with substantial constitutional safeguards and pro-
cedural protections. Although obstetricians may arrange
The lower court reached the startling, but legally under- adoptions, they can’t complete them with informed consents
standable, conclusion that no one could be considered Jay- or good intentions. Instead, child-placing agencies or profes-
cee’s parents under existing law. Reversing, the appellate sionals are required and are commonly licensed and
court went out on a legal limb and held John Buzzanca tightly regulated. Multiple obligations to the child (first
responsible based on his preconception intent, analogizing and foremost) and to both biological and adoptive parents
the arrangement to donor insemination. Although enlight- are expected.
ened, the court’s opinion did not recognize several compet-
ing concerns. The embryos were from a married Chicago To ensure against financial inducements, baby buying or
couple who literally did not remember consenting to embryo selling is strictly prohibited. State laws typically define and
donation after conceiving twins (Jaycee’s genetic siblings). cap permissible categories of expense reimbursements and
Their egg donor never intended or consented to her eggs frequently require judicial scrutiny. Adoptive parents are
being used to create embryos for anyone else. The gesta- rigorously screened and must pass physical, mental health,
tional carrier has since said she wants to raise Jaycee rather financial, and criminal background checks. Their motivation
than having her raised by a single mother. The court did note and readiness to adopt is routinely questioned. Biological
the absence of legislation, which it called for with some parents must provide comprehensive medical and social in-
urgency. Without legal precedent to guide it, the court could formation and cannot typically relinquish their rights pre-
have easily ruled differently. birth.
Another lawsuit signals a very different warning to any- Despite these legal protections, adoption practices used to
one providing ART-related services. A traditional surrogate look a lot like gamete donation does today. For most of the
sued a surrogacy center after the 6-week-old child she bore past century, adoption was a private, secretive affair, reflect-
for a single man was killed by him. The father had thrown ing the prevailing stigmas of unwed pregnancies and bas-
his son against the wall when he couldn’t stop the child’s tardized children. Birth mothers were kept from seeing their
crying. It later turned out the 26-year-old man had just child in the mistaken belief they would forget about them.
recently lost his own mother and had no child-rearing expe- Placement decisions were made by others and implemented
rience. The surrogate claimed the program owed, and immediately upon birth. Medical and background records
breached, a duty of care to her. were minimal. Birth and adoption records were permanently
sealed. Postadoption contact was virtually unthinkable.
Applying traditional law, a lower court dismissed her suit.
It ruled the program owed her no duty because she was not Adoption looks significantly different today. The majority
its client, and there was no recognizable duty to screen of U.S. adoptions are “open” to some degree. Birth mothers
intended parents for “parental fitness.” Reversing, the appel- often select, if not meet, their child’s adoptive parents. With
late court found avoiding negligence was not enough. It the increasingly recognized importance of genetics, it is now
ruled instead that “a business operating for the sole purpose standard practice (and legally required) to collect and trans-
of organizing and supervising the very delicate process of mit as much background information as possible about birth
creating a child, which reaps handsome profits from such parents and child to prospective adopters. Damages for in-
endeavor, must be held accountable . . . because a “special termediaries’ failure to disclose such information has been
relationship” exists between the surrogacy business, its cli- assessed in the millions of dollars (3). Some mandated
ent-participants, and most especially the child.” As such, the postadoption contact, including annual letters and photos for
program owed the surrogate a higher, affirmative duty of 18 years, is common. State-run registries are prevalent,
care against foreseeable consequences, including possible where mutually consenting adult adoptees and birth parents

776 Crockin Editor’s Corner Vol. 72, No. 5, November 1999

may obtain identifying information about one another. guidance for these new families and those that help make
Efforts to establish a federal registry are ongoing. Profes- them possible.
sional opinion is virtually uniform that these develop- Few of us like to be told what to do, and physicians have
ments reflect changes for the better for all involved in the an understandable distrust of increased regulation of medical
adoption triad. practice. But, we’ve come a very long way out the private
What does all this suggest for the future of collaborative doctor’s office and an even longer way from the private
reproduction? I believe we are at an historically unique procreative rights of two consenting adults. Regulation af-
intersection of medicine and law. One choice is to try to fecting families is a distinct policy issue, with an historic and
continue with the historical DI model of secret, private compelling claim to societal oversight. With a little wisdom
decision-making with minimal laws and piecemeal litigation gained from hindsight, we should be able to avoid the twin
delineating parentage. This approach defers solely to the dangers of bad laws or no laws. Especially for the sake of the
individual wishes of adult patients and their doctors. It also children being created, this is one invitation we can’t afford
increasingly imperils physicians and the families they try to to ignore.
help form. The other choice is to acknowledge and address References
the growing complexity of this field, including the interests, 1. Crockin SL. Statutory and case law governing oocyte and embryo
donation. In: Saver MV, ed. Principles of oocyte and embryo donation.
if not rights, of donors, surrogates, and carriers. Most criti- New York: Springer-Verlag, 1998:246 –7.
cally, it recognizes both the rights of the children and the 2. Buzzanca v. Buzzanca, 1998 Cal. App. Lexis 180, Sup. Ct. No.
95D002992; Huddleston v. ICA, Pa.SuperCt, No. 01888 PHL 1996,
obligations owed to them. This approach invites a coopera- 8/20/97.
tive, interdisciplinary effort to provide legal and societal 3. See, e.g. Mohr. v. Commonwealth, 421 Mass. 147 (1995).