The Law: The Riddle of A.I.

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Having been "absolutely sterile" for 18 years as the result of radiation exposure, Manhattan Internist John M. Prutting, 56, was hardly pleased last fall when Mrs. Prutting, 35, gave birth to her first child. Without his consent or knowledge, says the doctor, Mrs. Prutting conceived her child by A.I.D. (artificial insemination by a donor). Predictably, Prutting is now suing for divorce on the only ground New York permits—adultery. Unpredictably, his suit poses a curious legal riddle, and a jury must now tackle the key issue: Does A.I.D. constitute adultery?

Not only has the question never before been faced by a New York court, but it is totally unsettled in U.S. law—even though the first successful artificial impregnation of an American woman occurred in 1866. The U.S. now leads all countries in A.I. (Israel is second), and the technique is credited with the births of up to 150,000 living Americans. Yet no state or federal law deals with the problems involved. Indeed, the world's only A.I. law is apparently a 1947 New York City health regulation governing the use of donors, who are commonly anonymous medical students who get a fee of $15 to $25 for supplying semen, which the patient's doctor administers with a vaginal syringe.

Conflicting Decisions. No one is worried about the legality of A.I.H. (artificial insemination by a fertile but impotent husband). But endless legal snarls threaten the growing use of A.I.D. to help sterile marriages (at least one in every ten). The big puzzle is whether A.I.D. is legally equivalent to adultery. Yes, said the Ontario Supreme Court in the world's first case (1921): adultery is basically "the voluntary surrender to another person of the reproductive powers or faculties of the guilty person." In 1945, a Cook County (Chicago) court backed the apparently prevailing view that A.I.D. does not constitute adultery. Nine years later, however, the same court held that it does, with or without the husband's consent.

Even if A.I.D. is "adultery," the plaintiff husband in a divorce suit is still in trouble. If he consented, his wife may claim "condonation" (his tacit forgiveness), which usually bars divorce. If he did not consent, he may still be unable to prove that A.I.D. ever took place: he does not know the donor, his wife has a right to silence, and the doctor may not be allowed to testify if she objects. As a result, the husband faces the difficult job of proving that he actually was sterile nine months before the birth of his wife's child.

Confusing Questions. To compound the confusion, the few cases on record seem to agree that whether a husband gives his consent or not, A.I.D. children are born illegitimate; yet the same courts have managed to give the children all the rights of ordinary children by finding roundabout ways to rule that they have, in effect, been made legitimate. There is even more uncertainty, say some lawyers, about whether the donor himself can be made to support a child. Some state laws hold that every child is the responsibility of its "natural parents"—which in A.I.D. cases means mother and donor. If sustained, those laws might rapidly diminish the supply of willing donors.