By Courtney G. Joslin
Increasing numbers of people are forming families through assisted reproduction. Recently, there has been a push to impose new regulations on various aspects of this process. Some of these new laws open up participants to a range of possible penalties — civil, criminal, and/or professional discipline — for past “misconduct.” Other laws seek proactively to regulate the fertility care process. For example, some laws regulate the collection and dissemination of medical and identifying information about gamete providers — that is, sperm and egg donors. Other proposals seek to require gamete providers to agree to the release of their medical records.
It is surely important to assess and evaluate fertility care practices and to consider whether additional regulation is appropriate in this space. Particularly in the post-Dobbs era — an era marked by increasing attacks on reproductive health care (including access to IVF) and on LGBTQ people — it is also important to proceed cautiously and to consider how these proposals may adversely impact reproductive autonomy and family recognition.
Recent Regulatory Developments
Sensational news stories spurred some of these regulatory developments. For example, the 2022 Netflix documentary Our Father exposed a fertility doctor — Donald Cline — who used his own sperm to inseminate dozens of patients without their knowledge. Not surprisingly, efforts to respond to and to penalize these kinds of egregious past practices gained traction.
Today, at least 12 states have so-called “fertility fraud” statutes that impose penalties on past “misconduct” by participants in the process. Some, like Utah’s law, narrowly address the blatantly fraudulent behavior of inseminating doctors like Dr. Cline. Some pending bills, though, would go much further. For example, one bill out of NY — N.Y. A1114 (2023) — would expose gamete providers to liability for behavior that surely occurs with some regularity in the context of unassisted conception; it authorizes civil damages against gamete providers as well as health care providers for “negligent[ly]” providing “misleading” information about the “donor’s medical history.”
Other laws proactively regulate the procedures of gamete banks and fertility clinics. Most of these laws are based on Article 9 of the Uniform Parentage Act of 2017 or UPA (2017). Article 9 represents a modest, targeted type of proactive legislation. It requires the disclosure of nonidentifying medical information to parents at any point. It also requires the disclosure of identifying information upon request of the child at or after age 18 if the gamete provider agreed to have that information disclosed. Importantly, Article 9 is part of a comprehensive and inclusive statutory parentage scheme; in addition to regulating the assisted reproduction process, it also extends clear protections to all families formed through assisted reproduction, regardless of marital status, sex, or genetic connection.
Here too, though, we’re seeing states quickly push on. Last year, Colorado became the first state in the U.S. to require gamete providers to agree to the release of their identifying information. Moreover, like some emergent anti-abortion proposals, the law applies extraterritorially; that is, to any gametes provided to a Colorado resident, regardless of whether any of the relevant conduct — e.g., the collection or use of the gametes — occurred within the state.
Other proposals would go well beyond that. Some advocates urge the enactment of laws requiring the disclosure of identifying information prior to the child’s 18th birthday, thereby facilitating contact between the child and the gamete provider during the child’s minority. Another pending NY bill — N.Y. S2122 (2023) — would require gamete providers to agree to the release of their medical records from the last five years, something that raises significant medical privacy concerns.
Implications and Considerations Moving Forward
This is all happening very fast. Almost all of these laws were enacted since 2018. Each new law or proposal seems to go further than the last. To be sure, the behavior of inseminating doctors like Dr. Cline is deeply troubling. And consideration should be given to concerns raised by participants, including children conceived through assisted reproduction. But, particularly in this post-Dobbs landscape, taking account of potential ripple effects — including impacts on family recognition, on access to reproductive health care, and on health policy and privacy — is also important. Policy makers should slow down and take the time to carefully consider how to appropriately balance all of these considerations.
Take access to reproductive health care. Increasing the potential liability of gamete providers could reduce (maybe substantially) the number of people willing to be sperm and egg donors. This could exacerbate existing supply shortages, particularly with regard to donors of color. Expanding the potential liability for clinicians, including liability for unintentional conduct, might reduce the number of physicians willing to provide this care. We’re seeing this trend in the abortion context.
Here, though, I want to linger on another set of concerns — the impact on the legal and social recognition of families formed through assisted reproduction, especially those formed with donated sperm or eggs.
While assisted reproduction is not new, greater access and availability, along with the advent of new technologies, has facilitated greater family diversity. Families formed through assisted reproduction now include single-parent families, same-sex parent families, and families headed by unmarried couples. Many of these families include non-biological parents. This, in turn, has contributed to broadened social and legal understandings of the family. Today, most people hold the view that “families” are not limited to households consisting of married different-sex couples and their children.
The law, too, has evolved. Some states now have laws that protect all families formed through assisted reproduction, regardless of marital status or genetic connection. This legal evolution, however, is incomplete. Many states’ laws still only address, and therefore only protect, children born to married couples through assisted reproduction. In these states, a nonmarital child’s legal relationship with one or both of their intended parents may remain vulnerable. The risk that the intended parent is not recognized as a legal parent, or that the donor is recognized as a parent, is heightened when the law facilitates contact between a minor child and the gamete provider, as some current proposals seek to do. This concern is not just theoretical. A 2023 Oklahoma decision found that a child’s second parent was the sperm donor with whom the child had had contact, and not the lesbian spouse/intended parent.
Emerging proposals also have the potential to undermine the social standing and dignity of these families. By directing our attention to biogenetic connection, these laws risk re-privileging the view that “real” parent-child relationships are those that are biologically based. This view is presented in stark relief in the writings of some proponents who expressly speak in biogenetic conceptions of family by, for example, referring to gamete providers as genetic “parents” and to children conceived using gametes from the same person as “siblings.” Other proponents not only elevate biogenetic relationships but also denigrate non-biological ones; they argue that families created with donated gametes are inherently harmful because they separate children from their “true,” aka, biological parents. In this way, these arguments may be examples of what Reva Siegel calls preservation through transformation — the idea that when justifications for discrimination become socially untenable, they reemerge in new forms. In the past, some justified the legal privileging of married different-sex parents by disparaging other parents as immoral or unfit. Now that society has come to accept and embrace LGBTQ and single parents, these newly emergent claims offer a basis for denigrating these families, regardless of the worth or capabilities of the people in them.
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Certainly, there are steps that can and should be taken to address abuses and to better regulate assisted reproduction. It is important, however, for policymakers not to act rashly and, in so doing, undermine existing families and established family law principles.
Courtney G. Joslin is a Martin Luther King Jr. Professor of Law at UC Davis School of Law
