II. The Establishment of Paternity and Artificial Insemination

A. Jewish Law

The Talmud, in numerous places, recounts the list of prohibited marriages.² The genesis of such prohibited relationships always begins at birth. As the Talmud states,³ non-biological relationships, such as those created by adoption, are not recognized as creating a prohibition against marriage in Jewish law. As noted in the Shulchan Aruch, ⁴ it is permissible to marry one's adopted sister, even if she was raised in the same house. Thus, it is safe to say that according to Jewish law, parental relationships are granted to the natural parent⁵ and cannot later be changed to be in harmony with custodial relationships. Thus, unlike American law, the establishment of parental status is not typically a significant legal issue in Jewish law because in almost all situations the identity of the parent is legally clear.⁶

It is possible that some of the privileges and duties of parenthood which are rabbinic,⁷ rather than biblical,⁸ in origin can be transferred upon the establishment of custody by a non-parental guardian; these aspects of parenthood will be dealt with in the section on adoption.⁹ However, in the normal situation, in which the natural father's identity is clear, Jewish law dictates that he is also the legal father.¹⁰ No other considerations can change paternity once it is established. Thus, Jewish law faces none of the problems intrinsically associated with the American approach. Jewish law faces only a single definitional problem -- who is the natural father in the "hard" cases -- artificial insemination, testicular transplants and a host of other "unnatural" events potentially leading to fatherhood.

Currently, the only well developed dispute in Jewish law concerning the establishment of paternity arises in the case of artificial insemination -- however, the principles enunciated there solve almost all other "hard" cases. Four basic positions exist. The first position, referred to as the position of Rabbi Feinstein,¹¹ due to his vigorous advocacy of this position, is that artificial insemination is permitted and that the paternity of the child is established by the genetic relationship between the child and the father.¹² Thus, he who donates the sperm is the father. Furthermore, Rabbi Feinstein is of the opinion that the act of artificial insemination does not violate Jewish law¹³ and does not constitute an act of adultery by the woman.¹⁴

The second position, that of the Divrei Yoel is identical to that of Rabbi Feinstein's in acknowledging that the genetic relationship is of legal significance and the paternity is established solely through the genetic relationship.¹⁵ However, he also maintains that the genetic relationship predominates to establish illegitimacy and the legal propriety of these actions. Thus, heterologous artificial insemination is an act of adultery.¹⁶ Both Rabbi Feinstein and Rabbi Teitelbaum agree on how paternity is established; however, they differ as to how illegitimacy is established.

Two other positions are also offered on this topic. The first is that of Rabbi Waldenberg. He is of the opinion that an act of adultery occurs, not through the genetic mixing of sperm that is not the husband's with the wife's egg, but rather by the act of heterologous insemination itself; this act is physically analogous to adultery and is not permitted.¹⁷ This view is not based on the presence or absence of genetic relationships between child and husband but rather upon Rabbi Waldenberg's belief that the injection of sperm is itself a prohibited form of adultery. Furthermore, Rabbi Waldenberg maintains that this conduct is also a violation of the rules of modesty, which are of rabbinic origin.¹⁸ He would thus prohibit this conduct in all circumstances regardless of whether it technically violates the biblical prohibition of adultery.¹⁹

A fourth position is advocated by Rabbi Breish, who maintains that heterologous insemination is not an act of adultery, and no biblical violation occurs.²⁰ Nonetheless, he maintains that "from the point of view of our religion these ugly and disgusting things should not be done, for they are similar to the deeds of the land of Canaan and its abominations."²¹

In researching artificial insemination, one thing becomes apparent -- there is a paucity of talmudic sources on the topic. Except for the single talmudic source in Hagigah,²² which discusses artificial insemination en passant, no clear sources exist. The single talmudic source states as follows:

Ben-Zomah was asked: May a pregnant virgin marry a High Priest.²³ Do we assume that Samuel is correct, when he states that one can have intercourse many times without removing the physical characteristics of virginity, or perhaps this is unlikely. He replied: Samuel's position is unlikely, and we assume that the woman was artificially inseminated.

The simple explanation of the talmudic text is that artificial insemination does not create legal prohibitions which are normally based on prohibited sexual conduct, and through silence, the Talmud implies that it establishes paternity -- for if the Talmud maintained that even paternity was not established, it would have stated this.²⁴

Rabbi Feinstein, in mustering additional support for his opinion, quotes a ruling by Rabbi David Halevi (Taz) of the l7th century, which is itself based on a responsom of Rabbi Peretz, an 11th century Jewish scholar.²⁵ Rabbi Peretz states that in the absence of sexual intercourse, the child resulting from the mixing of sperm and egg is always legitimate.²⁶

Rabbi Feinstein, based on this source, reaches a critically important conclusion: if there is no forbidden sexual act, the child is acceptable for all functions and is totally legitimate according to Jewish law.²⁷ Furthermore, this child is not even stigmatized to the extent that he is forbidden to marry one of priestly descent,²⁸ since all of the stigmas associated with the child of an illicit relationship are dependent on the presence of prohibited intercourse, and not the genetic combination of two people who are prohibited to each other.²⁹ Furthermore, he accepts the literal interpretation of the talmudic text in Hagigah, and states that the genetic father is also the legal one.

The position of the Divrei Yoel can best be described as relying on radically different sources than Rabbi Feinstein. The Divrei Yoel relies on a position articulated by Rabbi Moses ben Nachman (Nachmanides), a twelfth century commentator on both the Talmud and the Bible. In his explanation on the verse "one may not have intercourse with one's neighbor's wife for seed [or sperm]",³⁰ he focuses on the final two words of the verse - "for seed." Nachmanides claims that these two words are apparently not necessary, and suggests the possibility that the words "for seed" were placed in the text to emphasize one reason for the prohibition of adultery -- that society will not know from whom the child is descended.³¹ Accepting this as one of the intellectual bases for the prohibition of adultery, the Divrei Yoel claims that heterologous insemination, even without any physical act of intercourse, is biblically prohibited, since had there been intercourse, it would be categorized as an act of adultery.³² The genetic combination of two people who are prohibited to marry leads to illegitimacy, even when there is no sexual intercourse.³³

He also devotes considerable time and space to defending his reliance upon a biblical commentary to derive principles of Jewish law, and notes that while some authorities believe that the reliance on commentaries on the bible is not acceptable, since commentaries were not intended to be used as sources for establishing Jewish law, nonetheless such sources ought to serve as a guide and furnish us with a better understanding of the scope of the law, particularly when these sources indicate that our conduct should become stricter rather than more lenient.³⁴ He also points out the position of the Sheltei Gibborim who deals with same facts as the Taz relied on by Rabbi Feinstein.³⁵ The conclusion of the Sheltei Gibborim however, is dramatically opposite to that of the Taz.³⁶

The position of Rabbi Waldenberg is, to a great extent, based on the same material as the Divrei Yoel. However, Rabbi Waldenberg does not emphasize the genetic relationship, i.e., the mixing of a sperm and an egg; rather he notes that according to Nachmanides, the injection of sperm is itself an act of adultery analogous to intercourse.³⁷ Thus, he maintains that the act of insemination is prohibited because it is the legal equivalent of actual intercourse, just as anal intercourse is legally identical to normal intercourse.³⁸ Rabbi Waldenberg also vigorously disputes the conclusions of Rabbi Peretz, quoting a number of early decisors who disagree with Rabbi Peretz.³⁹ It is worth noting that, according to Rabbi Waldenberg, it is possible to conclude that the one who injects the sperm is committing the act of adultery and is culpable as such.⁴⁰ Another commentator has gone so far as to assert that the person who injects the sperm is the legal father, since he or she is committing the adultery.⁴¹ This position has been widely attacked as it seems to be based on what on its face is an illogical position -- that neither the genetic father nor the husband of the wife would be considered the father of the child.⁴²

Rabbi Breish's position is the intellectual hybrid of the position of Rabbis Feinstein and Waldenberg. Rabbi Breish concedes that the child resulting from an artificial insemination is legitimate, a major concession to the intellectual opinion of Rabbi Feinstein.⁴³ He notes, however, his hesitancy to permit this conduct on grounds unrelated to the legal rules of adultery just as Rabbi Waldenberg does. He maintains that permitting conduct which people widely assume to be prohibited will result in the general decline of moral values.⁴⁴ Thus, he prohibits this conduct because it is the top of a slippery slope which he is not willing to even tiptoe down.⁴⁵

The positions articulated by these four commentators on heterologous insemination can equally be applied to future "hard" cases including one just over the horizon, testicular transplants. Rabbi Feinstein would maintain that Jewish law focuses on the presence of impermissible sexual liaisons. If the intercourse occurred between people permitted to marry, the child would be legitimate, and presumably would be the child of the biological⁴⁶ father.⁴⁷ In such a case, Rabbi Waldenberg too would maintain that paternity is assigned to the man who has the intercourse, since his understanding of Nachmanides is based on artificial insemination being a form of intercourse: like Rabbi Feinstein, if the intercourse is permitted, the child is legitimate. Its paternity is its biological father. The Divrei Yoel, on the other hand, focuses on the genetic relationship, which would follow the donor in answering these questions. Rabbi Breish would presumably permit this conduct since this type of relationship could easily be maintained in accordance with Jewish law's rules of modesty.⁴⁸

B. American Law

American law, unlike its Jewish counterpart, does not view the identity of the natural parent as the critical question in establishing legal paternity; rather, it views that question only as the starting point of its analysis. American law has always reserved to the legal system the power to shift parental rights in order to harmonize them with other values,⁴⁹ such as custodial parenthood⁵⁰ or the best interest of the child.⁵¹ The question of the natural parent is only the opening question in the process of deciding who should be a parent. Focusing on artificial insemination, one sees a significant example of a situation in which parenthood under the law has been rearranged to be in harmony with factors other than natural parenthood.

Although the medical technique of artificial insemination is more than 1500 years old,⁵² and has been commonly practiced for more than 50 years, American statutes and case law dealing with the issue are no more than twenty years old. Two legally different types of artificial insemination exist. The first, heterologous insemination, refers to insemination of a woman by a man other than her husband; this is commonly referred to as A.I.D. - Artificial Insemination, Donor. The second type, homologous insemination, refers to insemination of a woman by her husband; it is commonly referred to as A.I.H. - Artificial Insemination, Husband. No state in the Union currently attempts to regulate homologous insemination. It is very likely that the United States Constitution prohibits the states from regulating this or any other type of sexual activity between two people married to each other.⁵³

Two legal issues are presented by heterologous insemination. The first is the rights and responsibilities of a husband to a child who is not genetically his. The second is the rights and duties of the sperm donor to his genetic child. The leading, and one of the earliest cases, on the duties of a husband towards a child not genetically his, is People v. Sorensen.⁵⁴ This case involved a criminal action for non-support of a child resulting from the artificial insemination of a woman with the consent of her husband. After the couple's divorce, the husband refused to pay child support on the grounds that the child was not legally his.⁵⁵ The California Supreme Court ruled that the wife was entitled to child support from her former husband. The court relied on three analytically different grounds.

First, the court ruled on equity grounds that the husband's consent to the insemination estopped him from litigating the issue of genetic paternity.⁵⁶ Second, the court maintained that a strong public policy prevented the creation of a rule which would allow the breaking of the paternal relationship at the will of a now estranged husband.⁵⁷ Finally, the court added that, according to traditional common law theory, a child born to a married woman is presumed to be her husband's, and that presumption, along with the husband's consent, is strong enough to prevent the stigma of illegitimacy from applying to the child.⁵⁸ Based on all of these reasons, the California Supreme Court granted the state's request for criminal sanctions against the non-supporting husband.⁵⁹

In a similar vein, the Chancery Division of the New Jersey court in S. v. S.⁶⁰ ordered payment of child support to a woman who was artificially inseminated with her husband's consent, although the husband had tried to withdraw his consent in the third month of pregnancy. The Chancery Court held that even absent written consent, consent is presumed in these cases; such presumption can only be overcome by "clear and convincing evidence."⁶¹ Furthermore, once consent is given, it cannot later be withdrawn. For reasons which are unclear, however, the court awarded only partial child support to the woman.

Another example of this type of reasoning can be seen in the New York case of In Re Adoption of Anonymous,⁶² where a man would not consent to the adoption of his child by his former wife's current husband. The wife argued that the consent of her former husband was not needed, since the child was the product of heterologous insemination, and was not the former husband's genetic child.⁶³ The court stated that both parties are estopped from raising the issue of the paternity of the child because the former husband consented to the insemination and became the child's legal father.⁶⁴

A large number of cases from jurisdictions across the United States have accepted the holdings of the above-cited cases and have ruled that a husband who consents to the artificial insemination of his wife is legally bound to function as the father of the child.⁶⁵ In the very recent case of In re Baby Doe,⁶⁶ the Supreme Court of South Carolina held that the husband's knowledge of and assistance in his wife's efforts to conceive through artificial insemination constituted consent to the procedure, thereby rendering the husband the legal father of the child with all legal responsibilities, including support. This case found the husband obligated to support the child notwithstanding the lack of written consent, in harmony with the New Jersey case of S. v. S.⁶⁷

The first case to rely exclusively on the estoppel argument, i.e., although the husband is not the real father, the law will treat him as such because he agreed to be so called, is the New York case of People v. Dennett.⁶⁸ The court ruled that in a divorce action, the wife was estopped from grounding her sole right to custody of her child on the fact that the child, being a product of artificial insemination, was not her husband's child. The court stated that she could not suddenly advance this position at the divorce stage having never mentioned it before.⁶⁹ The functioning of the couple as husband and wife and the implication that this child was their joint issue showed mutual consent to the parental nature of the relationship towards the child.⁷⁰

The case of Anonymous v. Anonymous⁷¹ involved a situation in which a husband attempted to deny paternity of a child resulting from heterologous artificial insemination. The court held that the husband had a duty to support such children as a direct result of the written agreement between the husband and the wife. The court also found that the husband's actions in aiding the artificial insemination, the wife's pregnancy, and the child's delivery, demonstrated the husband's specific consent, and that proof of this kind is almost irrebuttable.⁷² Another example of this type of reasoning is State v. P.,⁷³ in which the New York Appellate Division reversed a Supreme Court ruling ordering a blood test of the husband to determine paternity in the case of an artificial insemination.⁷⁴

The Appellate Division stated that ordering the test was an error since it had potential to bastardize the child without settling the issue of paternity, as it is possible that the legal father of the child is the husband notwithstanding the lack of genetic relationship.⁷⁵ Thus, ordering a blood test offended the state's public policy against bastardizing children.⁷⁶

Furthermore, in light of the artificial insemination of the woman by a doctor, even the husband's sterility would not disturb the legal obligation upon the husband to function as the father of the child.⁷⁷ Both parties were thus estopped from contesting the husband's paternity of the child.

Only one case ever found that children who are the product of consensual heterologous artificial insemination are illegitimate. This case, Gursky v. Gursky,⁷⁸ found that the husband's consent estopped him from litigating the issue of his financial duty of support towards the children. However, vis-a-vis other aspects of legitimacy, such as inheritance or use of his last name, the child was not legitimate. The Gursky court also strongly criticized a previous New York case, Strnad v. Strnad,⁷⁹ which claimed that children who are the product of heterologous insemination are "adopted" informally by the husband. According to Strnad, the husband's obligation toward such a child is similar to his obligation toward any other adopted child. The Gursky court stated that this rationale is incorrect as there is no statutory creature called "informal adoption":⁸⁰ no adoption procedure takes place, and if such an adoption were to take place, a court decree would be required.⁸¹ In artificial insemination cases, the Gursky court noted, no court consent is needed.⁸² Many commentators have criticized the Gursky decision, arguing that it violated a judicial policy against the stigmatization of children through artificial insemination.⁸³

Thus, the status of the common law can be summarized in the following manner: it is close to unanimous that children resulting from heterologous insemination are legitimate. Furthermore, all of the states that have commented on the issue have accepted that once a man consents to the artificial insemination of his wife, he is legally obligated to support the resulting children either through the theory of equitable estoppel, which prohibits the husband from litigating the paternity of a child resulting from heterologous insemination to which he consented, or through the theory of adoption which states that the husband, by his consent, has formally or informally adopted the children.

Currently, twenty-eight states have passed statutes regulating artificial insemination by a donor.⁸⁴ While the length of these statutes range from the very terse to the very long, the primary focus of all the legislation is the legitimization and support of the resulting children. Almost all of the statutes either explicitly or implicitly limit the procedure to married women.⁸⁵ Many statutes require that the insemination be performed only by a licensed physician, and typically require the filing of consent and registration forms with the state.⁸⁶ Confidentiality of these forms is protected.⁸⁷ Many also explicitly deal with the inheritance rights of the child conceived through artificial insemination.⁸⁸ Only one of these statutes imposes criminal sanctions for not following the statutory procedures.⁸⁹ Most significantly, each statute explicitly assigns all paternal rights to the husband who consents to the artificial insemination of his wife.⁹⁰

A number of states have enacted a particular type of statute. It reads generally:⁹¹

(1) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of the child thereby conceived. The husband's consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination and shall file the husband's consent with the department of health, where it shall be kept confidential and in a sealed file; however, the physician's failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for good cause shown.

(2) The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived.

This exact statutory language is in effect in eight states.⁹² On the other hand, not all statutes are as clear as this statutory scheme; the vaguest statute is found in Louisiana. It states: "The husband ... cannot disavow paternity of a child born as the result of artificial insemination of the mother to which he consented."⁹³ No court cases elaborate on this statute.

The second major issue in artificial insemination cases is the rights of the sperm donor. As shown above, the most common statutory regulation of sperm donation strips the sperm donor of any statutory rights to the resulting child. Only two American cases discuss the rights of a sperm donor. The first case, C.M. v. C.C.,⁹⁴ is an action brought by the donor of semen used by an unmarried woman to artificially inseminate herself. The artificial insemination was done privately, without the assistance of a physician. The donor requested that he be named the legal parent and be granted visitation rights to the child who was born as a result of the artificial insemination. The court ruled that the donor was the natural father of the child and entitled to visitation rights.⁹⁵ This case did not involve a married woman. In such a case, the court would likely use a husband's consent as dispositive of legal paternity.⁹⁶

The second case, Jhordan C. v. Mary K.,⁹⁷ also involves the informal donation of sperm to a woman without the presence of a physician. In an extensive opinion, a California court ruled that the statutory provisions of the Artificial Insemination Act only encompasses the donation of sperm to a licensed physician. In the case of private donation, the anonymity of the sperm donor is not protected, nor are his legal rights and duties as a father removed.⁹⁸ The court also addressed a number of constitutional issues as they related to artificial insemination. The court ruled that the statutory distinctions between married and unmarried women are constitutional as there is a longstanding state policy to encourage a stable family environment.⁹⁹ The court also noted that the vulnerability of sperm donors to paternity actions in the case of informal donation does not make such sperm donation illegal under the statute; it only strips the donor of certain legislatively granted protection from responsibilities that are normally his. The court claimed that being named the father of one's own child is not a punishment.¹⁰⁰ Furthermore, it strongly implied that a statutory scheme prohibiting private sperm donation would be unconstitutional.

Except for these two cases, no cases question the constitutionality of denying custody or paternity rights to sperm donors. This may be because sperm donors generally desire anonymity and do not wish to assume financial or emotional responsibility for the children that they father.¹⁰¹ Nor typically are the receivers of the donated sperm interested in tracing the genetic father.¹⁰² A concerted effort to attack the constitutional basis for the denial of paternity rights to one who is the genetic father would probably succeed when the donation is not done through a sperm bank. The Supreme Court has ruled numerous times that decisions relating to method and frequency of procreative, sexual, and marital activity have a very high constitutional value.¹⁰³ A state must show a compelling state interest and be subject to the strictest of scrutiny before it can successfully regulate these activities.¹⁰⁴ Although this issue was not discussed in C.M. v. C.C.,¹⁰⁵ it was probably a major factor in granting visitation to the sperm donor who deliberately donated to a particular woman in order to oversee the raising of the child.¹⁰⁶

C. Comparison and Summary

In summation, Jewish law maintains that paternity is established irrevocably as belonging to the natural parent. In the typical case in which the same person is both the genetic and biological father, Jewish law mandates that such a person is the legal father. In the case of artificial insemination, where there is no biological father but only a genetic father, almost all decisors maintain that Jewish law defaults to the principle of genetics to establish paternity. Furthermore, most of the commentators hold that in the absence of any intercourse there can be no illegitimacy.¹⁰⁷ A significant minority of the commentators disagree and maintain that illegitimacy can be established through genetic relationships, absent intercourse.

In contrast, American law focuses on radically different values. Natural parenthood is just the starting point for determining who the father is. American law will look at such diverse factors as estoppel, best interests of the child, common law presumptions, and general principles of equity to establish fatherhood. Typically, in artificial insemination cases, when the donor does not claim parental rights, the law transfers them to the wife's husband as he is best suited to be the father.