Family Law Newsletter

Legal Issues that May Arise With Artificial Insemination

Artificial insemination or intrauterine insemination is a procedure in which a fertility specialist inserts specially treated sperm through the cervix into a woman's uterus. Artificial insemination increases the likelihood of fertilization and is performed when the woman is ovulating. Artificial insemination may involve the actual use of a partner's sperm or donor sperm.

The law governing artificial insemination did not develop in a clear and concise manner. Only a few more than one-half of the states have enacted legislation regarding artificial insemination. No state has enacted a comprehensive legislative scheme regulating artificial insemination. Additionally, there is not a lot of available caselaw on the subject.

Husband's Sperm

When the husband's sperm is used in the artificial insemination procedure, the issue of parentage does not usually arise. A child born as a result of artificial insemination is genetically the same as if he had been conceived in the customary manner. Typically, if the husband consents to the artificial insemination procedure, he is the presumptive father. Further, if the husband is married to the mother at the time of the child's birth, he is considered the presumptive father.

Donor Sperm and Parentage Issues

The majority of states do not have statutes in place that restrict who may actually donate sperm. Oregon is the only state that requires a licensed doctor to select a sperm donor and prohibits a number of persons following into certain categories from donating sperm.

Where the recipient of the sperm is a married individual, most states generally require the consent of her husband to the procedure. Parentage may usually only apply to the husband only if consent is given. If the husband fails or refuses to give his consent to the procedure the issue of parentage may arise. However, if the husband gives his consent to the procedure he is considered the presumptive father if he is married to the mother at the time that the child is born.

If the recipient of the sperm is unmarried, there is no presumptive father for the child other than the donor. Generally, the father of a child by an unmarried mother may exercise parental rights with regard to that child. However, the donor may be unknown or may choose not to exercise his parental rights.

Compensation to the Sperm Donor

Whether or not a sperm donor may be compensated is a fuzzy issue. It is not uncommon for a sperm donor to receive compensation for sperm donated at a sperm bank. Although there is no applicable caselaw on the topic, the general consensus is that there are no federal statutory restrictions that prohibit the payment for sperm donations.