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Unmarried Couples

There is an ethical debate over whether fertility technology should be available to unmarried couples. This is not an issue for techniques that correct physiological or psychological conditions that impair fertility, when the patient then conceives through intercourse with a self-selected partner. While the physician may not approve of the behavior, just as he or she might disapprove of premarital sex in general, the physician has no right to impose his or her values on the patient. It does become an issue when physicians are asked to do procedures such as in vitro fertilization or artificial insemination.

While many physicians believe that marriage should not be a precondition to artificial insemination or in vitro fertilization, there is a societal policy, expressed through various laws, against having children outside of marriage. Most state laws on artificial insemination by donor (AID), which is the usual request, are written in terms of a married couple. It is not clear whether any of these laws forbids the artificial insemination of an unmarried woman. They do, however, leave a child born of AI outside of marriage in a legal limbo.

In some states, specific statutory authorization was necessary to permit AID. Without the statutory authorization, AID contravened state laws on adultery or fornication. If an authorizing law is written solely in terms of a married couple, then AID of an unmarried woman might violate fornication or adultery laws. Given that laws against fornication and adultery are constitutional, the constitutional right of reproductive freedom probably does not extend to unmarried couples. State civil rights laws requiring married and unmarried persons to be treated in the same way might imply that an unmarried person is entitled to AID or in vitro fertilization. Conversely, since in most states a married woman cannot be artificially inseminated without her husband's permission, equal treatment might also mean that AID is not available without a husband.

Physicians who choose to offer AID and in vitro fertilization to unmarried persons should seek legal advice to ensure that they do not violate any state laws. They should be meticulous in both infectious and genetic disease investigation. This is a controversial area. Physicians may be involved in highly publicized lawsuits if the couple decides to break up and the donor contests paternity.


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