Contents. Introduction. Acknowledgments. 1 Assisted Reproduction and the Diversity of the Modern Family 1. 2 Intrauterine Insemination 31.
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1 Introduction Acknowledgments xvii xix 1 Assisted Reproduction and the Diversity of the Modern Family Assisted Reproduction Technology Today ART and Marriage Evolution of the Family The Right of Privacy, Family Choice, and ART Assisted Procreation and the Modern Family Parentage and ART under the UPA Parentage and the ABA Model Act Governing Assisted Reproductive Technology (2008) The U.P.C. and ART The Difficulty Faced by Some Families in Obtaining ART Services The Need for Legislation Intrauterine Insemination Intrauterine Insemination Generally Understanding the Terminology Procreation and Intrauterine Insemination Sperm Donor for Assisted Conception Is Not a Parent The Anonymous Donor The Known Sperm Donor Contracts Exempting Known Sperm Donors from Support Obligations vii
2 viii Contents 2.8 Consent of the Spouse to Insemination of other Spouse with Donor Sperm Specific Parentage Issues with Same-Sex Partners and Intrauterine Insemination Specific State Statutes Governing Consent of Husband (Legal Spouse) to Use of Donor Sperm...55 Alabama Alaska...56 Arizona...56 Arkansas...56 California Colorado...57 Connecticut...57 Delaware...57 District of Columbia...57 Florida...57 Georgia...58 Hawaii Idaho...58 Illinois...58 Indiana Iowa...58 Kansas...58 Kentucky...59 Louisiana...59 Maine Maryland...59 Massachusetts...59 Michigan...59 Minnesota...59 Mississippi Missouri Montana Nebraska...60 Nevada New Hampshire New Jersey New Mexico...61 New York...61
3 ix North Carolina North Dakota...61 Ohio Oklahoma...61 Oregon Pennsylvania...62 Rhode Island...62 South Dakota...62 South Carolina Tennessee Texas...62 Utah...63 Vermont...63 Virginia...63 Washington...63 West Virginia...63 Wisconsin...63 Wyoming ABA Model Act on ART Position on Spousal Consent UPA Position on Right of Spouse to Dispute Parentage Application of Equitable Estoppel or Ratification Theories Consent or Estoppel in Nonmarital Cases Insemination by Intercourse Distinguished No Legal Distinction Between Intrauterine Insemination and IVF Intrauterine Insemination by Persons under Confinement Posthumous Reproduction by Intrauterine Insemination Ownership of or Access to Cryopreserved Sperm Liability Issues and Intrauterine Insemination Conclusion In Vitro Fertilization The In Vitro Fertilization Procedure Legal Regulation of IVF Gamete Intrafallopian Transfer Distinguished from IVF Intrauterine Insemination Distinguished from IVF Preimplantation Genetic Diagnosis of Embryos Multiple Embryo Implantation....97
4 x Contents 3.7 Cryopreservation Cryopreserving Embryos in Anticipation of Loss of Fertility Multiple Legal Issues Arising out of IVF Checklist of the Purposes and Uses of IVF Legal Status of the Egg or Sperm Donor When IVF Is Used for Assisted Conception Custody, Visitation, and Support Disputes Arising from IVF Divorce and Decision-Making about the Embryos Produced for IVF Conclusion Cryopreserved Embryos Cryopreserved Embryos Embryo Donation Embryo Adoption Statutes and Case Law Relevant to Embryo Donation The Intended Parent Theory Public Policy Considerations Embryo Creation Donation for Research Disposition of Embryos in Divorce Proceedings Conclusion Surrogacy Surrogacy Generally Traditional (or Genetic ) Surrogacy Gestational Surrogacy Surrogacy Laws in the United States Alabama Alaska Arizona Arkansas California Colorado Connecticut...152
5 xi Delaware Florida Georgia Hawai i Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia...189
6 xii Contents Washington Washington, DC West Virginia Wisconsin Wyoming Conclusion Regulation of Assisted Reproductive Technology Statutory Regulation Generally Legal Definitions of Infertility Required Medical and Health Insurance Coverage Reporting Requirements Religious Exemptions Standards of Practice Compulsory Revelation of Success Rates Medical Evaluation of Gamete Donors or Recipients Statutory Regulation of Surrogacy Taxation Issues in Assisted Reproduction Medical Ethics Standards International Regulation Conclusion Posthumous Reproduction Posthumous Reproduction Generally Preserving the Possibility of Posthumous Reproduction Inheritance Who Is a Child or Issue? Uniform Laws and Posthumous Children The ABA Model Act and Posthumous Reproduction Specific State Laws Defining the Inheritance Rights of Posthumously Conceived Children Court Decisions Involving Posthumously Conceived Children Conclusion...252
7 xiii 8 Cellular Manipulation: Reproductive Cloning, MRT, and CRISPR The Future of Assisted Reproduction Human Cloning Explanation of Cloning Methods The American Bar Association s Position on Reproductive Cloning Laws Governing Human Cloning Human Cloning and Public Policy Mitochondrial Replacement Gene Editing The Chimera Issue The Feasibility of Maintaining Bans on Human Cloning and Genetic Manipulation Conclusion Standards of Care: Law, Liability, and Assisted Reproductive Technology The Potential for Injury in Use of Assisted Reproductive Technology Consent Issues Wrongful Life Theories and the Damages Dilemma Damage Claims for Wrongful Birth Failure to Warn Theories Negligence Theories Intentional Misconduct Deceptive Advertising Checklist of Breach of Duty Theories Breach of Contract Theories Evolution of Standards The ABA Model Act Governing Assisted Reproductive Technology and Standards of Liability Discrimination Legal Malpractice
8 xiv Contents 10 Assisted Reproduction Contracts and Documents Assisted Reproduction Contracts Generally The Contents of the Contract A. Generally B. Gamete Donor Contracts C. Contracts for Surrogacy D. Other Contracts Consent to Use of Gametes and Parentage Assisted Reproduction Involving Family Members Agreements on Expenses Breach of Contract Representing Parties to the Agreement Legality of Assisted Reproduction Contracts Choice of Applicable Law Utility of Assisted Reproduction Contracts Fertility Clinic Contracts Establishing Parentage in Gestational Surrogacy Cases Checklist of Contents to Obtain Pre-Birth Order of Parentage Judgments of Parentage Potential Hurdles to Obtaining a Pre-Birth Order of Parentage Estate-Planning Documents Document Checklist Conclusion The American Bar Association s Model Acts Governing Assisted Reproductive Technology The ABA Model Act on ART Generally The ABA Model Act on ART Compared to the Uniform Laws What the ABA Model Act on ART Addresses The ABA Model Act on ART and the Uses of ART Purpose of the ABA Model Act on ART Terminology of the ABA Model Act on ART Informed Consent and the Required Disclosures The Status of Donors...359
9 xv 11.9 Use of the Gametes of Incompetent or Deceased Persons Mental Health Consultation of All Participants Disposition of Embryos The Status of Children of Assisted Reproduction Surrogacy Arrangements Infertility and Insurance Issues Regulating Providers of ART Services The ABA Model Act Governing Assisted Reproductive Technology Agencies Glossary 381 Index 391
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