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When artificial insemination became a medical practice in the 1940s, controversy arose over the fact that the act of fertilization occurred outside the act of coitus. The use of donor semen (artificial insemination donor) was deemed a form of adultery and any offspring resulting from the procedure were considered illegitimate despite its use solely in cases of a husband's infertility, with written consent from both the husband and the wife. One way of bypassing this condemnation was by mixing the sperm of the husband with that of the donor in an artificial insemination center (AIC) so that the paternity of the offspring was uncertain.

State court cases began surfacing in 1964 when Georgia became the first state to declare a child legitimate if the husband gave written consent. In 1968 People v. Sorensen held that a man who had been convicted for not supporting a child conceived with his consent through donor insemination was legally obligated to support the child, relieving the donor of any financial responsibility. In 1973 the American Bar Association adopted the Uniform Parentage Act, which viewed the woman's husband as the natural father of a child conceived with donor insemination if the husband consented and if it was done under the supervision of a physician. The use of donor sperm in unmarried women did not occur until the 1970s.

The women's liberation movement of the 1970s ushered in a new wave of women's independence. As women started to question and challenge the roles and expectations of their sex, many women began to redefine what it means to be a woman. Unmarried women who desired children but not the marriage that traditionally preceded it, as well as lesbian couples, sometimes resorted to a home-based method of artificial insemination. Using a turkey baster or a syringe with a donor's semen, women would impregnate themselves. By the late 1970s sperm banks allowed unmarried women to receive sperm from an unknown donor.

Although purchasing sperm remains a relatively easy task, finding a specialist to perform the insemination is more difficult. The decision whether to inseminate an unmarried woman, regardless of her sexual orientation, resides with the individual physician. Physicians in private practice have the right to refuse to serve any individual. The right to refuse under the Hyde-Weldon Amendment signed unto law under the 2005 Omnibus Appropriations Bill (HR 4818) extends the ''conscience clause'' to apply to any public health entity from health management organizations to individuals working for a public health service to refuse to perform services such as birth control, abortion, eugenics, and infertility services on the basis of religious or moral objections. The attention given to this clause has been focused mainly on birth control and abortion, but the clause also affects the ability of unmarried and nonheterosexual people to receive insemination services. These obstacles can be circumvented through home-based artificial insemination, but the complex legal issues that surface in cases of nontraditional insemination are becoming more politically charged.

Same-sex parenting and adoption, surrogate rights as well as the rights of a couple using a surrogate, legal protection of known donors, and the rights of offspring to receive donor identity are issues that have begun to surface in the courts and vary from state to state. For example, in a 2002 Pennsylvania case, Ferguson v. McKiernan, which was granted an appeal by the Pennsylvania Supreme Court in 2005, the lower court found McKiernan responsible for the support of two children he had fathered through donor insemination. The courts decided that the ''rights'' of an interested third party (the children) cannot be ''bargained away'' even if the third-party interests are not present at the time the contract is made. The ramifications of this ruling could extend to sperm bank donors as well as known donors and surrogates. A donor's right to anonymity also has been challenged; in 2006 only eight states recognized the parental rights of a nonbiological parent besides the stepparent in a heterosexual marriage, granting sole custodial rights to the biological parent or, in the case of the death or disability of that parent, to a family member of the biological parent rather than the same-sex partner even if the children were conceived as a couple. The relative ease of artificial insemination has created complex social issues that have begun to surface in public debate.

Bibliography:

Carbone, June. 2005. ''The Legal Definition of Parenthood: Uncertainty at the Core of Family Identity.'' Louisiana Law Review 65: 1295-1334.

Shapo, Helene S. 2006. ''Assisted Reproduction and the Law: Disharmony on a Divisive Social Issue.'' Northwestern University Law Review 100(1): 465-497.

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