I. INTRODUCTION

Fifteen percent of the United States population of reproductive age is infertile.(1) This figure translates into at least ten millionAmericans who have difficulty establishing a pregnancy at will.(2)Both men and women have described infertility as a devastating experience:

For someone who loves children, who has always planned to have children, infertility is an agonizing experience....[T]he cycle of hope and then despair that repeats itself month after month in unsuccessful infertility treatment can become unbearable. Nor is the experience of infertility made easier by the unintended thoughtlessness or uncomfortable attempts at humor of others. It is hard to know which is worse: to endure a toast on Father's Day made with eat fanfare by someone who knows full well your efforts to become a father or to suffer yet another comment about "shooting blanks."(3)

[D]iscovering that you are infertile is a devastating experience. The knowledge of one's infertility is a dramatic shock because we all assume our fertility and guard ourselves against its consequences....

The experience of infertility has been called a lifecrisis. Part of that crisis comes from the knowledge that something over which a woman thought she had control was in fact not within her control. A woman may feel particularly frustrated and resentful if she has been using, for example, the Pill or an IUD for years only to find that birth control was unnecessary.The experience of infertility has been likened to the grief experienced after the death of a loved one.(4)

In 1987, approximately 1.2 million patients were treated for infertility.(5) Many such patients resort to reproduction technologies for alternative methods of procreation. The development of assisted conception procedures such as artificial and in vitro fertilization has given the opportunity for parenthood to thousands of couples unable to conceive a child by sexual intercourse.

Because assisted conception sometimes introduces third parties into the procreative process, there may be more than two persons who could be considered the child's parents. Assisted conception, therefore, challenges the traditional concept of parenthood on which inheritance statutes are based: a natural or biological parent-child relationship in which a child has a clearly delineated natural mother and a clearly delineated natural father.

This article has three objectives. First, it explores the impact of assisted conception on the parent-child relationship for purposes of inheritance by examining inheritance statutes and related laws and case law dealing specifically with reproductive technologies. Second, it identifies shortcomings of current inheritance and domestic relations laws in their approaches toward assisted conception issues. Finally, it submits a proposal for statutory reform.

II. THE PROCEDURES USED IN ASSISTED CONCEPTION

A. ARTIFICIAL INSEMINATION

The scarcity of adoptable infants in the United States has largely contributed to the demand for artificial insemination, the oldest and most commonly used form of assisted conception.(6) Artificial insemination is most frequently used to combat male reproductive problems, especially infertility.(7) Less than five percent of requests for artificial insemination are from women who want to establish a pregnancy, but who do not have male partners.(8)

Artificial insemination involves the introduction of semen from either the recipient's husband or an anonymous donor into the recipient's vagina or uterus.(9) Insemination with the husband's sperm is called Artificial Insemination by Husband (AM); insemination with a donor's sperm is called Artificial Insemination by Donor (AID). Either fresh semen or semen that has been thawed after long-term frozen storage can be used for the procedure.(10) It takes an average of seven insemination attempts over 4.4 cycles to establish a pregnancy,(11) and about forty percent of artificial insemination patients have a child as a result of the procedure.(12)

During a 12-month period in 1986-87, 172,000 women were artificially inseminated in the United States at an average cost of $953 per patient.(13) During that period, 35,000 births resulted from AIH, and 30,000 births resulted from AID.(14)

AIH poses no conceptual problem to the traditional notion of two-parent procreation, because the husband of the recipient is the donor. Thus, the artificial insemination procedure is simply an alternative means of conception, resulting in a child with two clearly identifiable natural parents.

With AID, however, the genetic "natural" father is a third-party donor whose identity is usually unknown. Most states protect the parental rights of the recipient's husband in an AID situation, but the question arises whether the legal relationship between the child and the genetic father is necessarily extinguished for inheritance purposes. The problem is compounded if the recipient is unmarried or if the artificial insemination is not performed by a physician, because most statutes addressing parent-child relationships resulting from AID do not cover either of these situations.

B. IN VITRO FERTILIZATION

Scientists originally developed in vitro fertilization (IVF) to bypass damaged fallopian tubes, where fertilization naturally occurs.(15) The first "test-tube baby" resulting from successful IVF, Louise Brown, was born in England in 1978.(16) Over 1200 babies were born from IVF in the United States in 1987,(17) and there are now over 3000 IVF offspring worldwide.(18) As of 1988, 169 centers in the United States offered IVF at a cost of around $6700.(19)

IVF involves the fertilization of a human egg outside of a woman's body and the subsequent transfer of the fertilized egg to the uterus. Eggs are removed from a woman either after drug stimulation, which permits the retrieval of several mature eggs, or during a natural cycle.(20) The growth and maturation of the eggs are tracked by measuring estrogen levels or by monitoring ovarian follicles by ultrasound.(21) Mature eggs are removed either surgically through the abdomen or nonsurgically through the vagina by ultrasound-directed aspiration.(22) The retrieved e are put with treated sperm in a petri dish, where fertilization occurs.(23) The first cleavage, or cell division, occurs about a day and a half later,(24) and the embryo is then transferred to the uterus at the two-to sixteen-cell stage.(25) If the embryo implants itself into the uterus, a successful pregnancy is achieved.(26) Because fertilization and cleavage normally occur in the fallopian tube,(27) the transferred embryo may be less developed than embryos entering the uterus after natural fertilization.(28) Twenty to forty percent of mature eggs fail to be fertilized by IVF, and most fertilized eggs fail to establish a pregnancy.(29)

Because an egg can be retrieved from one woman and transferred to the uterus of another woman, the resulting child may have two natural mothers-the genetic mother and the gestational mother, or birth mother. Egg donation resulted in the birth of at least sixteen babies in 1987.(30) Donated eggs are used in IVF when there is a failure or lack of ovaries or a desire to avoid known genetic defects.(31) Eggs may be donated by relatives or friends, or by IVF patients from whom excess eggs have been retrieved.(32) Women undergoing tubal ligation sometimes agree to ovarian stimulation so that their eggs may be retrieved during the surgery and donated to recipients.(33) One writer has suggested establishing egg banks similar to sperm banks to service women in need of donors.(34)

In IVF, either the donor or the recipient may be intended to be the mother, complicating the parental relationships. In some cases, the donor gives an egg to permit the gestational mother to have a child because the gestational mother is unable to produce viable eggs. In other cases, a gestational mother gives birth to permit the genetic mother to have a child because the genetic mother is unable to carry a pregnancy to term. The parental relationships may be complicated further because the sperm used for fertilization can come from any source, including the husband of the genetic mother, the husband of the gestational mother, or a third-party donor.

C. CRYOPRESERVATION