The Riddle of A.I.

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.

The problems are endless. What about a doctor who performs the quite feasible trick of arranging A.I.D. during a gynecological examination without a wife's knowledge or consent? Can he be charged with a sex offense? Should a woman whose husband is not sterile be permitted to use A.I.D. because she desires a child of what she hopes is "better stock" than her husband's? Since one donor is capable of fathering 30 children per donation, how can the law prevent incest between siblings sired by the same donor? (A doctor's privileged knowledge once headed off just such a marriage.) If records are kept, how public can they be without hurting the children?

The expanding list of such questions is finally stirring a call for more laws and high court rulings that will supply answers and standards. Says Howard Schwab, former chairman of the American Bar Association's Family Law Section: "The time has come to look at this matter in the cold light of day--to realize that something must be done to create laws that will permit this process of artificial insemination to be respectable. A.I.D. is with us and growing. We must regulate it while we still have control."

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