A New Fundamental Right to Artificial Insemination?

A disturbing case ruling has been handed down from the California high court, setting precedent in favor of Artificial Insemination for same gender parents, even as against the conscience of the attending physician.

The reasoning and analysis of the case is disturbing because of what this opinion could mean. The court argued that the right to individual reproductive health care trumps a doctor’s or nurse’s right to refuse elective treatment. Yet numerous sociologists, researchers and health care professionals have found that research reveals a child’s best interest is most effectively accomplished by having a father and a mother, ideally married to each other. Setting a precedent that coerces health care professionals to act contrary to their personal convictions on family design could have a far reaching impact on law and culture. See the case summarized here.

If appealed, this case could go to the Supreme Court of the United States. If so, that court could reverse this precedent. On the other hand, should the High Court see fit to declare a new fundamental right to artificial insemination, family law across the fifty states could create a whole new legal landscape of parental autonomy preferred over protecting a child’s best interest.

Family law is about family restoration, rather than the idolization of individual rights. When reproduction is involved, a third party’s concerns must be considered in the highest regard – the law calls this the best interest of the child. Child bearing for personal fulfillment is not fostering the best interest of a child.

It seems, however, that an attitude of strong, healthy families comprised of parents who often forgo their own fulfillment for the best interest of their children - family restoration - is welcomed by those who wish to remain healthy, financially secure, and even by the most sincere parents – no matter how reproduction is accomplished.

Professor Kohm has written about women, men and artificial insemination in several contexts:
Regarding children see What’s My Place in this World? 35 Capital U. L. Rev 563 (2007).
Regarding marital property see “Honey I Froze the Kids”: Implications for Marriage and the Family in Light of Reproductive Technology, 46 Virg. Lawyer 37 (April 1998)(reprinted in Minn. Fam. L. J., October 1998). Furthermore, research noted in this article is available in the sources and citations found in another article by Professor Kohm entitled Moral Realism and the Adoption of Children by Homosexuals, 38 New Eng. L. Rev. 643 (2004).

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