Ashley Brown


Legal Research for Reproductive Technology and Issues



Currently, according to the website for the National Conference of State Legislatures, fifteen states have law pertaining to cloning.  The issue was first addressed by CaliforniaÕs legislature, which banned reproductive cloning, or cloning to initiate a pregnancy in 1997.  However, California now has laws that specifically permit cloning for the purposes of research. It also prohibits the purchase of zygote, eggs, embryos or fetus for the purposes of reproductive cloning.  California establishes civil penalties and revocation of licenses of those who assist in reproductive cloning.  Others states impose much more serious punishments.  For example, Connecticut prohibits reproductive cloning, permits cloning for research, and punishes the crime by a large monetary fine or imprisonment for not more than 10 years.

On a federal scale, the national government has not yet passed any legislation regarding cloning. The latest attempt was in 2007 with the Human Cloning Prohibition Act.  Internationally, the UK has allowed cloning of human embryos for therapeutic (developing stem cells to regenerate tissue), but not for reproductive purposes.


Genetic Engineering

Crops:  California passed a law in 2008 that began regulation of the genetically engineered crops. It provides protection to those farmers that cannot prevent GE contamination of their non-GE crops, and when the owners of the patents of the biotech companies try to bring the farmers to court.  The legislation protects the farmers from liability.



California has taken the lead in providing a favorable place to find an egg donor and a surrogate mother. The prospective parents can be reasonably sure that in California their agreement with the surrogate mother will be upheld. In the seminal case of Johnson v Calvert, the California Supreme Court held that the gestational surrogate had no parental rights to a child born to her.  The California Family Code provides two ways to establish maternity.  There are several states that still prohibit surrogacy agreements, but the law varies depending on the circumstances.  Some states only prohibit compensated surrogacy agreements, some fully prohibit them, some simply wonÕt enforce the contracts, some states permit them only for married couples, and some states have no provision concerning surrogacy. 

As there are normally three criteria courts look to to establish parental rights (genetic ties, delivery of the baby, intended parents), surrogate mothers meet two of those three criteria. It would be best to have a gestational carrier and eggs from a different donor to ensure that there are no problems, as even though you can enter into a contract, sometimes that isnÕt fool-proof.


i.               Artificial Insemination

If a woman is artificially inseminated with the semen of a man who is not her husband, her husband is treated in law as the natural father of the child thereby conceived. Fam. Code ¤ 7613(a). The artificial insemination must have been conducted under the supervision of a licensed physician and with the consent of the woman's husband. The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated as if he were not the natural father of the child. Fam. Code ¤ 7613. The woman just needs to prove she gave birth to be the legal mother.  However, if a friend or someone else just donates sperm, there is a risk with paternity issues in the future.

¤ 7613. Natural father of child conceived by artificial insemination; conditions

 (a) If, under the supervision of a licensed physician and surgeon and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband's consent must be in writing and signed by him and his wife. The physician and surgeon shall certify their signatures and the date of the insemination, and retain the husband's consent as part of the medical record, where it shall be kept confidential and in a sealed file. However, the physician and surgeon's failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician and surgeon or elsewhere, are subject to inspection only upon an order of the court for good cause shown.

(b) The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.


The Court in Buzzanca extended the reasoning of Johnson to surrogacy births where the intended parents are not biologically related to the child.  Likely, this case could be used to establish paternity of a gay male couple who use a surrogate, but if the surrogate changes her mind before she has the baby and claims maternity, it would be a hard process.  It would be best for a gay couple to use gestational surrogacy—a surrogate who carries an embryo donated from a different egg donor.  Additionally, the parentage of a newborn depends upon the law of the state in which the baby is born.  For gay men, the ability to create a parent-child relationship will depend on the law of the state where the surrogate gives birth.


Invitro Fertilization

When invitro fertilization goes wrong, and the intended parents are damaged by the doctorÕs negligence or some other culpable conduct, plaintiffs have faced difficulty in fitting their injury into a cognizable legal category.  When a clinic implants the wrong embryo in the wrong uterus, or fertilizes an egg with the wrong sperm, what theory would most adequately address the problem and compensate the injured? Plaintiffs normally try for tort law, but have been largely unsuccessful, due to the lack of a definition of Òinjury,Ó where the law falls short of the demands of new technology.  One commentator has suggested creating a new injury---a procreative injury—based on the legal recognition of the human interest in procreation.  Plaintiffs could also try for the tort of wrongful conception:  the birth an unwanted healthy child due to the negligence of the defendant. 

A case in New York, in which a woman was inseminated with the wrong manÕs sperm in 2007, resulted in a lawsuit against the clinic.  The judge threw out parts of the lawsuit, such as a claim for mental distress, explaining that the birth of an unwanted but otherwise healthy child does not constitute an injury to the childÕs parents. The judge did allow the claim for malpractice to proceed.

In Ireland, a court declined to award damages to a family that claimed a health service provider inseminated the woman with the wrong sperm.  The judge explained that he could not rule that the IVF clinic had not fulfilled its duty of care because the law was not specific on what that actually meant in regard to IVF.  He suggested that the parentÕs only expectation is that the children were born healthy and well.


Embryo and Gamete Dispostions Laws

Something else I thought of that was interesting involving reproductive technologies is what happens once you have your eggs taken out to be fertilizied or tested for the genetic defect you are trying to avoid, and you choose only one to be implanted.  What happens to the other fertilized embryos, since technically they are your potential children?  There are laws that address embryo disposition in the event of death, divorce, or options for disposition of embryos such as storage, disposal, or donation to research centers

California has laws that govern the disposition of embryos, giving patients enough information to make an informed decision before the doctors go to retrieve the eggs, and other information concerning what the intended parents want to do with the unwanted embryos.  I also included probate law concerning a baby that is made and one of the parents dies, and how it would take under an intestacy scheme.

California Penal Code ¤ 367g prohibits the use sperm, ova, or embryos in assisted reproduction technology in a manner other than stated on the written consent form of the provider of the sperm, ova or embryos. The statute also requires signed written consent to implant embryos or gametes. The use of sperm donated to a licensed tissue bank is excluded.


California Health and Safety Codes ¤ 125315 requires health care providers to give infertility patients the necessary information to make an informed and voluntary choice regarding the disposition of any human embryos remaining following the fertility treatment. Patients must be offered several options, including storing any unused embryos, donating them to another individual, discarding the embryos, or donating the remaining embryos for research. The State Department of Health Services must establish and maintain a registry of embryos that would provide researchers with access to embryos for research purposes. The law specifies requirements for obtaining informed consent from an individual considering donating embryos for research.  


California Probate Code ¤ 249.5 thru 249.8 states that a child conceived and born after the death of a parent shall be deemed to have been born in the lifetime of the deceased parent as long as the deceased parent consented to the use of the genetic material or the child was in utero within two years of decedent's death. If the child meets one of these qualifications, he/she will be entitled to death benefits from that parent.


2006 Cal. Stats., Chap. 483 requires a physician and surgeon, prior to obtaining informed consent from a subject for assisted oocyte production or other method ovarian retrieval for retrieving eggs for research or medical therapies, to provide the subject with a standardized written summary of health and consumer issues and to obtain written and oral informed consent.   It also prohibits human oocytes or embryos from being acquired, sold, offered for sale, or otheriwse transferred for valuable consideration for medical research or therapies.


2006 Cal. Stats., Chap. 806 requires a person who causes conception through assisted reproduction to submit to the jurisdiction of the courts of CA.  It permits a person who enters an assisted reproduction agreement to bring an action to establish a parent and child relationship.  It permits the court to enter an order or judgment based on that action before the birth of the child and to consider a parent's criminal record prior to the felony conviction in making a finding that a parent is unfit to have future custody or control.



Stem Cell Research in California

California is in a unique position within the United States to conduct stem cell research and accelerate stem cell therapies. The California Institute for Regenerative Medicine (CIRM) has funded buildings that are needed in order to do the research without the restrictions that came with federal funding under President Bush.  President Bush put restrictions on federal funding to embryonic stem cell research—the administration prevented funds from being used to create new stem cell lines.  However, Obama lifted those restrictions and has allowed for research for new stem cell lines to begin. 

In other states, Individual states have passed legislation to allow some forms of human embryonic stem cell research, to provide some funding for the research or to specifically ban some research. A handful of states have passed laws to either fund stem cell research or at least encourage the research. Other states have laws that make the research extremely difficult and in some cases illegal.


Technology Extending a WomanÕs Reproductive Span

Websites such as allow women to freeze their eggs and allows them to Òdelay motherhood.Ó   Since egg quality peaks at age 27 and starts to decline in the 30s, This will have interesting implications on social structure and womenÕs decisions to delay pregnancy, and likely delay marriage.