Articles

IS IT ADULTERY ?

Through artificial insemination, more and more couples unable to have children together are happily raising the babies of fathers they have never seen. Are such children illegitimate?

CHARLES NEVILLE February 15 1949
Articles

IS IT ADULTERY ?

Through artificial insemination, more and more couples unable to have children together are happily raising the babies of fathers they have never seen. Are such children illegitimate?

CHARLES NEVILLE February 15 1949

IS IT ADULTERY ?

CHARLES NEVILLE

CAN a man and woman commit adultery without seeing or knowing each other, while remaining miles apart? Incredible as it seems, judges, lawyers, churchmen and doctors throughout the world are answering “Yes.”

It is one of the most sensational and controversial problems of our day. Let’s look at a specific case . . .

In the maternity ward of a Toronto hospital a white-gowned doctor strides down a dimly lit corridor, finds the nervous father entrenched behind a pile of cigarette butts in the waiting room and announces jovially: “It’s a boy.”

Then the doctor looks closer and adds:

“And, by golly, he looks just like you.

A chip off the old block!”

The father laughs heartily—much more heartily than a normal new father should under the circumstances. The doctor will never know what the joke was.

For, unknown even to the doctor who delivered the baby, unknown to everyone except the mother, her husband and another doctor, the “chip off the old block” is a “test-tube baby” and the husband is a sterile man who can father no children of his own. With the husband’s consent, the wife had been artificially inseminated.

The donor was known only to the doctor who performed the operation.

As soon as it became evident that the wife was pregnant, the doctor who superintended the artificial insemination advised her to call in a different doctor for prenatal care and delivery.

Though not essential, this assures that from the very beginning of prenatal life the infant goes down on the records as a normal child of the man and woman concerned.

This couple had waited 11 years in vain for a child. Both wanted a baby and, secretly, each blamed the other. When at last they took their problem to a doctor, their marriage was becoming strained; a barrier was growing between them.

Today, thanks to scientific assistance, they have a bright, healthier-than-normal son a year old, and their married life is happier than it has been since the days of their honeymoon.

And it is no accident that friends and relatives say the boy looks just like his “daddy,” for the doctor who performed the artificial insemination spent two weeks seeking a donor with matching features, hair, physique and personality.

Carefully guarding the couple’s identity, the doctor commented: “I think that within a few years they would have separated. The wife possessed strong mother instincts, and wanted a baby of her own. She wouldn’t hear of adoption. She had become frustrated, nervous and high-strung.

“Today, I’ll bet there isn’t a happier couple in Toronto. The husband tells me he sometimes has to pinch himself to remember that he isn’t the real father.

“He suffered through his wife’s pregnancy like any other father, he paid the bills, the baby looks like him, he selected its name, he saw the baby in the hospital almost as soon as his wife did, and even the grandparents call him the father without knowing the real story.”

The basic purpose of artificial insemination demands complete secrecy and there are no accurate statistics to reveal how many such children there are in the world today. It is resorted to in three types of cases: 1, where the husband is sterile, in which case an outside donor is used; 2, where the husband or his family have a hereditary mental or physical affliction which

might be passed on to his offspring, in which, again, a donor is used; and 3, where the husband and wife are fertile, but where, because of some physical trouble, pregnancy cannot result from normal marriage relations but can be induced when the wife is artificially inseminated with the husband’s sperm.

Artificial insemination by donor is known as AID, when the husband’s sperm can be used, as AIH. It has been practiced more widely in the U. S. than anywhere else.

Early in 1948 artificial insemination figured in a paternity case in New York City and the court was told at that time that there were probably

20,000 AID children being raised in the U. S.

A doctor who is one of Canada’s few’AID specialists said he thought the number in Canada was proportionately far lower than in the U. S. There were probably 100, most of them five years old or younger, in Toronto and Montreal, and maybe another dozen or so in other parts of Canada.

Britain has at least two artificial insemination clinics, and AID has been practiced there since World War I, yet newspaper estimates on the number of British AID children are always under 500. Canadian and U. S. doctors say the number must be much larger.

AID is known to have been used for childless couples in Russia, Germany and France, before the war. No one knows how common the practice was, or is today.

Thousands of couples whose married lives were barren and empty because of childlessness are proud, happy parents today through artificial insemination. Yet science, in making the lives of these couples happy, has confounded the lawyers, the judges, the moralists, and psychologists with as knotty a problem as mankind has faced since Darwin pitched the world into its squabble over evolution.

When a wife permits herself to be artificially impregnated with the seed of a man not her husband, has she committed adultery? Does the

husband’s consent make it any different, morally or legally? Is an AID baby, though wanted by both the mother and her sterile husband, illegitimate? Are the parents committing perjury when they register it as their own child? And what is its legal rating if a husband, who originally agreed to the scheme, changes his mind and repudiates the child later? Has the child a legal leg to stand on if its mother and foster father die and a decision on its inheritance rating winds up in the lap of a staid court judge? What might happen if in later life the child develops such an unmistakable resemblance to its real father that this unknown donor becomes recognized? What about the opportunities offered for what might well become history’s most vicious form of blackmail? And if the practice becomes commoner so that there may be many children in a city with the same donor father, how great might be the danger of half sisters marrying half brothers, unaware of their relationship?

Psychologists warn of these threats to emotional stability: will the mother dream of the child’s father, whom she has never seen and only heard of vaguely, and lose her love for the husband who couldn’t give her a child? Or will the husband, watching the growing up of his wife’s child which he was physically unable to father, develop an inferiority complex? Will he come to bate the child?

Churchmen See Vice

NOT ONE of these questions has been finally answered. The legal conundrums posed by artificial donorinsemination births have been argued in a few Canadian, IJ. S. and British court cases and judges have handed down decisions, but these court precedents are not law and anyway the judgments have been far from u n a n itnouH.

In no country have the lawmakers yet worked out a clear-cut legal status for the AID child. Many church bodies have had their say about the moral rights and wrongs of artificial insemination (mostly wrongs, the churchmen think), but throughout the world artificial insemination is legal today, not because any government has called it legal, but merely because no one in authority has got around to calling it illegal.

Briefly, it can be said that most courts and church bodies have called AID children “illegitimate . . . the product of adultery,” or words that mean the same thing.

Let's go back to that Toronto couple mentioned earlier and trace the history of their case from the beginning. After 11 years of waiting for a baby, they go to a doctor. They choose, by accident, one of the four Toronto obstetricians who perform artificial inseminations.

Examination quickly reveals that the wife is fertile but her husband sterile. One out of 10 Ganadian couples is unable to have children and, of these barren marriages, one third is due to sterility in the husband. Male sterility has nothing to do with potency or masculinity as commonly thought; it may l>e due to something as simple as mumps, or an athletic injury.

The doctor recommends adoption but the couple won’t hear of it, and husband and wife counter at once with a request for information on artificial insemination. The obstetrician refuses point-blank to perform an artificial insemination, but explains the process carefully, outlines its legal and emotional dangers, then sends them home to reconsider their decision about adopting a baby.

Through artificial insemination, more and more couples unable to have children together are happily raising the babies of fathers they have never seen. Are such children illegitimate?

“I always say ‘no’ to artificial insemination and recommend adoption when a patient first brings the subject up,” the

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doctor revealed. “In an emotionally stable couple who earnestly want their own baby I firmly believe that artificial insemination by a donor is preferable to adoption. But we have to select couples very carefully, for artificial insemination is dynamite. We have to make certain that the husband is not a weak-willed, unstable individual who might turn against the child or abandon his wife in later years.”

The couple return a week later, say they won’t consider adoption and ask again about artificial insemination. And again the doctor refuses. But he talks to them for a long time, feeling them out carefully, determining whether the husband is as eager as the wife, whether the marriage is in danger of breaking up.

Finally he decides that here is a case where an AID child is sincerely wanted and would be loved like a normal child. His “resistance” breaks down and the doctor agrees to artificial insemination. Now he must find a donor.

Brothers Can Help

This is a big problem in Canada. In New York and Chicago, where artificial insemination is a relatively common and socially accepted practice, there are bureaus where professional donors register.

In rare cases doctors have agreed to use a brother of the husband as donor, thereby keeping the paternity in the husband’s own blood line. This is kept secret from the wife so that her affection cannot transfer itself to the brother-in-law who has fathered her child. Practically all artificial insemination practitioners, however, maintain it is imperative that the donor remain unknown to both husband and wife, and also that the couple remain unknown to the donor.

The donor must resemble the husband, must have no prominent features which could be passed on, and must be of superior intelligence, character and health. Most donors in Canada and the U. S. are medical students and interns. They can look upon the practice in a purely scientific and impersonal manner. They are paid like blood donors ($10, usually, but as high as $35 in New York) and the}' never know whether their specimen is being used for an artificial insemination or merely for laboratory research.

Fifteen yearsago in New York, when artificial insemination was still new, donors were paid $100 to $150.

As a final step the Toronto doctor has the couple sign papers in which both consent to the operation and agree to accept any resultant child as their legal heir. Then the papers are locked away in the doctor’s safe and forgotten.

It’s possible these papers w'ould be refused recognition in a court, but doctors feel they must do all they can to keep their work on a proper legal basis.

The actual artificial insemination is a simple procedure. The doctor has

the wife come in at the period of the month in which he believes she will be most fertile and inseminates her with the specimen obtained in advance from the donor.

Pregnancy may not result with the first attempt and the operation has to be repeated a month later. One Baltimore woman was inseminated 23 months in succession before pregnancy finally resulted, but four to six months is the average period.

There is no very accurate information on how long the male sperm can remain alive and capable of fertilization, but experiments in shipping have proved quite successful. British doctors reported a few wartime cases in which wives at home were successfully impregnated with sperm flown to them from husbands who were in Africa or Europe on active service.

In 1943 the American Medical Association Journal reported the case of a Montreal wife who was inseminated successfully with sperm provided by a donor in New York. Ordinary air mail was used, and customs officials “in the know” waived examination of the parcel to speed it on its way. The Montreal doctor recommended a New York professional donor toensureanonymity. This is one for the moralists: Can a

woman without leaving Montreal be guilty of adultery with a man in New York?

Winding up the Toronto case history, it’s recorded that on the third attempt the wife became pregnant.

“All right, you are finished with me,” said the doctor. “Go to another doctor for your prenatal care and carry on as if it were your own normal baby.”

And a healthy boy was born nine months later.

The painstaking screening of couples is the doctors’ answer to the dangers which churchmen and psychologists see in artificial insemination. The doctors agree that a donor-fathered child might grow into a barrier between husband and wife if the couple were originally unstable or the child not earnestly desired. But every doctor performing artificial inseminations guards against this by selecting prospective AID parents so carefully that, in actual practice, many couples are turned down for every one accepted.

Some Doctors Afraid

Doctors who have had experience with artificial insemination are unanimous that the dangers of emotional or psychic troubles are exaggerated.

“Psychologists and church leaders see all kinds of dangers, but they do their talking without ever actually having seen a family in which there is an artificially inseminated child,” a doctor said. “We have seen the real situation in scores of families.

“I have never heard of a divorce or other domestic trouble caused by the presence of a child which came from artificial insemination. It’s usually the other way around—marriages in danger of breaking up are cemented firmly together again by the child.”

Not infrequently a wife will demand

artificial insemination without the husband’s knowledge, hoping to give birth to a baby which the husband will think his own and thereby sparing him the humiliation of being proved sterile. Most doctors refuse these requests. There is too much danger, they say, of the husband later learning the truth and domestic trouble resulting.

The Canadian Medical Association has never discussed artificial insemination and has taken no official stand. There are probably less than a dozen doctors in Canada who have done it.

Most young doctors are not opposed, but many older doctors reject it on moral grounds.

The obstetrical head of a large hospital says: “I’d be afraid to try it

because I doubt if we are legally protected as the law is now.”

Other doctors comment:

“Patients have asked for it three or four times but I refuse because obtaining a donor would get you into an awkward position. If we had a system like they have in U. S. cities where donors can register voluntarily, I am sure I would be doing it.”

“I have done about 50 in the past two years, only half of which have been successful. But I consider it a pain in the neck. I agree only after a lot of pressure from the family.”

“It was relatively unknown in Canada until a little over five years ago. Now Canadians are getting educated to it and more and more are asking for it. I have never attempted it, but I am studying the procedure and believe I will try it on a few of my patients who are very anxious.”

One of the four Toronto doctors practicing artificial inseminations reported that he had one family in which there was a three-year-old AID child and a second one “due to be born any day now.”

In New York there is a family with four AID children, several with three. When the parents of an AID child come back and ask the doctor for a second one, the doctor usually tries to obtain the same donor again so that the children will be true brothers and sisters.

In the U. S. there are perhaps a dozen doctors who are widely known for their success with artificial inseminations. Yet the American Medical Association, the U. S. doctors’ official poiicy-setting body, in 1945 declared it illegal under present laws, branding the children as illegitimate and the practice itself as adultery.

Dr. Alan F. Guttmacher, obstetrician at Johns Hopkins University, Baltimore, Md., who is probably the leading artificial insemination exponent in the U. S., replied hotly: “I think this policy is inexcusable. The wife’s motive is to escape adultery by having her baby by a decent means. I refuse to let my work be interfered with by such legal falderal.”

Adultery and artificial insemination were opposites, Dr. Guttmacher insisted. One was done clandestinely to deceive and enjoy carnal pleasure; the other was performed decently and frankly to beget offspring without even the emotional enjoyment of normal marriage relations.

Toronto Breaks Ice

AMA fired back: If only the

husband’s consent was required to legitimize the offspring of artificial insemination, then by similar reasoning it might be argued that if a husband consented to his wife’s adultery this consent legitimized the issue of the adulterous connection.

The world’s first official court statement on the legality of artificial insemination came as a result of an action

for alimony in the Supreme Court of Ontario at Toronto in 1921. This case, Orford versus Orford, is recorded in the yellowing pages of “Ontario Law Reports of 1921.”

The Orfords were married in Toronto in 1913 and went to England soon afterward. They separated within a year, the wife remaining in England with her parents, the husband returning to Canada. The separation allegedly occurred because the marriage was not consummated due to a physical condition in the wife. The wife claimed she was anxious to cure her condition and return to her husband.

An English doctor told her that if she were artificially inseminated and bore a child the condition which debarred her from marriage relations would disappear. Without the knowledge of the husband in Canada she sought the co-operation of a male friend as donor, submitted to artificial insemination, and bore a child in 1919. The donor adopted the child and the wife came to Canada to attempt rejoining her husband.

The husband accused her of adultery and refused to accept her back. Whereupon the wife sued for alimony and for the first time in history artificial insemination came under the scrutiny of a court of law.

Mr. Justice Orde listened to evidence and legal arguments for several days, then brought down his famous judgment. He dismissed the wife’s claim for alimony saying: “A wife’s sub-

mission to artificial insemination without her husband’s consent is adultery —not because of moral turpitude but because adultery is the voluntary surrender to another person of the reproductive powers or faculties of the guilty person. It is adulterous because it involves introducing into the family of the husband a false strain of blood.”

The wife’s lawyer had argued: “Without sexual intercourse there is no adultery.”

Mr. Justice Orde replied: “A monstrous conclusion to put forward in a court of justice! It is adultery—adultery in a test tube!”

Escape From Perjury

The British divorce action, Russell versus Russell, brought the judgment that a wife who bears a child as a result of artificial insemination “even with the full approval of her husband, has committed adultery without its pleasures.” The judgment added: “It is conception of a child by another man which constitutes adultery.”

Two recent U. S. cases indicate, however, that the courts are growing more lenient. In Chicago a judge stated that “artificial insemination, even without the husband’s consent, is not in itself grounds for divorce on a charge of adultery.”

A New York husband, legally separated from his wife, won the right to visit his four-year-old daughter each Sunday, although the wife had revealed that she had borne the child after artificial insemination.

The New York judge ruled that the child was legitimate, and that the father had the same rights toward her as though she was of his own blood.

Ontario’s new Vital Statistics Act, which became law Jan. 1, doesn’t once mention artificial insemination, yet it gives the artificially inseminated child and its parents a better break, most lawyers believe, than they get in any other part of the English-speaking world. Under it all children are registered in the mother’s name.

An Ontario married mother is required only to enter the name of her husband beside her own on the registration, and the husband is presumed

to be the father of the child without the mother being required to say definitely whether he is or not. Thus all children born to married mothers rate as legitimate, and the parents of an artificially inseminated child can withhold the name of the real father (which they don’t know anyway in 99% of the cases) without resorting to perjury.

Church leaders, especially in Britain, denounce artificial insemination as a vile corruption which threatens to undermine the standards of Christian morality.

“Boon to Happiness”

The Roman Catholic Church has taken a rigid stand. In 1897, when artificial insemination of humans was first beginning to appear feasible, the simple question: “Can artificial in-

semination of a woman be practiced?” was put to the Holy Office in Rome. Came back a crisp and unequivocal ruling; “It. is not lawful.” And the church of Rome hasn’t relented one iota since.

The Roman Catholic Church condemns the practice, as it condemns birth control, on the grounds that man is usurping the functions of God.

Last July the Anglican Church made up for lost time with an official condemnation as damning as anything yet put forward by the Church of Rome.

A commission of 13 experts (including six doctors, two of whom were women) was established at the direction of the Archbishop of Canterbury and headed by the Lord Bishop of London. • Artificial insemination by donor, the experts said, should be made a criminal offense. It was ... “a breach of the marriage,” “wrong in principle and contrary to Christian standards.” Strong criticism was also leveled by churchmen at a conference called by the Public Morality Council in Britain.

The doctors’ answer is that artificial insemination is a boon to human happiness and social welfare; that it is no more contrary to natural law than anaesthetics, blood transfusions, serums or surgical operations.

Support comes from Britain’s World League for Sex Reform, which states that the method is widely used among a British aristocracy plagued by male sterility.

A rebel is Dr. Frances Seymour, medical director of Eugenic Alleviation of Sterility Inc., New York City. She states defiantly that she has given “laboratory babies” to many unmarried, as well as married, women.

“It is every woman’s heritage to bear children,” Dr. Seymour says. “Artificial insemination provides the unmarried businesswoman with a decent and moral method of acquiring the children nature intended her to bear.” ic