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Article
March 2, 1984

Legal Issues in Nonsurgical Human Ovum Transfer: Grace Ganz Blumberg

JAMA. 1984;251(9):1178-1181. doi:10.1001/jama.1984.03340330036020
Abstract

IN NONSURGICAL human ovum transfer, an ovum donor is artificially inseminated with the semen of a man whose wife is infertile. Before the fertilized ovum has implanted in the donor's uterus, it is removed by catheter and transferred to the infertile wife's uterus. The infertile wife carries the ovum to term.

Fertilized ovum transfer may raise questions in three discrete areas of law: federal regulation of medical research, state restriction of fetal research and prohibition of the sale of children, and state law definition of the inter se rights of the participants, namely, the rights and duties between and among the participants as well as physician liability to the participants.

Human ovum transfer is not generally interdicted by federal human subject or fetal research regulations. Unlike state research laws, which typically extend to all research conducted within the jurisdiction, the federal rules purport to regulate only federally funded research. With

References
1.
45 CFR §46.204(d) (1982).
2.
45 CFR §46.206(a)(1).
3.
45 CFR §46.101 et seq.
4.
45 CFR §46.203(c) (1982).
5.
Katz,  Genetics and the Law II, at 360.
6.
notes 18-19 infra.
7.
45 CFR §46.203(g) (1982).
8.
45 CFR §46.201(b) (1982).
9.
Ill Rev Stat ch 38, §81-21(7) (Smith-Hurd 1982)
10.
Ill. Rev. Stat. Ch. 23, §2354 (1981)
11.
Minn Stat Ann §145.421(2) (West Supp 1982)
12.
Smith v Hartigan, 82 C 4324, US DC, ND Ill (Feb 4, 1983)
13.
Cal Health and Safety Code §25956(a) (West Supp 1983)
14.
La RS 40:1299.35.12 (West Supp 1982)
15.
La RS 14:87.2 (West 1974)
16.
Mass Ann L ch 112 §12J (Lawyers Co-op Supp 1983)
17.
Mich Stat Ann §14.15(2685) (1980)
18.
Minn Stat Ann §§145.421, 145.422 (West Supp 1982)
19.
Mo Ann Stat §188.037 (1983)
20.
Neb RS 28-346 (1979).
21.
supra.
22.
Cal Health and Safety Code §25956(a).
23.
Cal Business and Professional Code §§2220, 2222, and 2254.
24.
RS 14:87.2 (West 1974).
25.
Cal Health and Safety Code §25956(a)
26.
Katz, Genetics and the Law, at 361.
27.
Minn Stat Ann §145.421 (West Supp 1982).
28.
One might argue that ovum transfer, while "experimental" in the sense that it is a new procedure, is essentially "therapeutic" and hence not "research or other experimentation" within the meaning of the statute. It seems to me, however, that the purpose of the statute, to protect the dignity and physical well-being of the fetus, is served by reading the phrase "research or other experimentation" broadly to include all active uses of the conceptus. It would indeed be odd if, for example, the statute were interpreted to allow an industrial use of the living human conceptus that was neither research or experimentation.
29.
Minn Stat Ann §145.422 (West Supp 1982).
30.
Id.
31.
410 US 113, 93 S Ct, 705, 35 LEd 2d 147 (1973).
32.
Smith v Hartigan, supra note 6
33.
Note, however, that the use of the products of superovulation and superfecundation for any purpose other than implantation might run afoul of the statute.
34.
Supra note 17.
35.
Robertson,  Procreative Liberty and the Control of Conception, Pregnancy and Childbirth , 69 Va L Rev 405 (1983)Crossref
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Flannery et al, HEW Ethics Advisory Board, Reports and Conclusions: HEW Support of Research Involving Human In Vitro Fertilization and Embryo Transfer, appendix 7-44 (1979)
37.
Flannery et al,  Test Tube Babies: Legal Issues Raised by In Vitro Fertilization , 67 Georgetown LJ 1295, 1300-1305 (1979)
38.
Comment,  Lawmaking and Science: A Practical Look at In Vitro Fertilization and Embryo Transfer , 1979 Detroit Coll L Rev 429, 435-438, 442-444
39.
Comment,  Artificial Human Reproduction: Legal Problems Presented by the Test Tube Baby , 28 Emory LJ 1045, 1052-1061 (1979)
40.
P. Reilly, "In Vitro Fertilization and the Law—A Legal Perspective," in Genetics and the Law (Milunsky and Annas, eds, 1976).
41.
Smith v Hartigan, supra note 7.
42.
Cal Health and Safety Code §25956 (West Supp 1983
43.
La RS 40:1299.35.12 (West Supp 1982)
44.
Mo Ann Stat §188.037
45.
L. Andrews,  New Conceptions , St Martins Press, in press.
46.
Cal Penal Code §273 (a criminal misdemeanor to pay anything of value to a parent for the consent or cooperation of the parent in a subsequent adoption of the child) and Cal Penal Code §181 (a felony to pay anything of value in consideration of having a person placed in one's custody).
47.
Doe v Kelley, 6 Fam L Rptr (BNA) 3011 (Wayne Cty Cir Ct 1980), affd 106 Mich App 169, 307 NW 2d 438 (1981) cert denied 103 S Ct 834 (1983).
48.
Syrkowski v Appleyard, 9 Fam L Rptr (BNA) 2260 (Mich Ct App 1983).
49.
7 Fam L Rep (BNA) 2246 (1981).
50.
Cal Penal Code §181.
51.
Roe v Wade, 410 US at 118-144,156-162.
52.
Doe v Kelley, 6 Fam L Rep (BNA) 3011, 3013 (Wayne Cty Cir Ct 1980), aff'd 106 Mich App 169, 307 NW 2d 438 (1981), cert denied 103 S Ct 834 (1983).
53.
Comment,  Contracts to Bear a Child , 66 Cal L Rev 611, 613 (1978).Crossref
54.
 Matter of Adoption of a Child by LT. , 162 NJ Super 587 (1978).
55.
Minn Stat Ann §145.422 (West Supp 1982).
56.
Contrast Mass Ann L ch 112 §12 J(a)(IV) (Lawyer's Co-op Supp 1983)
57.
Unif Parentage Act §5(b), 9A ULA 592-593 (1979)
58.
Cal Civ Code §7005(b) (West Supp 1983)
59.
Fam L Rptr (BNA) 2351 (1981)
60.
Cal Civ Code §7005(b)
61.
note 30 supra
62.
I assume here that the donor who has borne the child will claim custody while attempting to impose a paternal support duty on the hapless father.
63.
H. Clark, Law of Domestic Relations 155-158 (1968).
64.
This presumption is generally thought to advance the goals of protecting the child's legitimacy and the family's privacy.
65.
Contrast the situation described immediately above, where the donor refuses lavage, bears and keeps the child, and then tries to establish the genetic father's paternity.
66.
In a recent widely reported case, a married surrogate mother gave birth to a severely defective child. The alleged genetic father, who had contracted to adopt the child, disclaimed paternity. Ultimately he proved that he was not the genetic father.
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