Kara W. Swanson, Northeastern University School of Law, has published Adultery by Doctor: Artificial Insemination, 1890–1945, at 87 Chicago-Kent Law Review 591 (2012). Here is the abstract.
Download the article from SSRN at the link.
In 1945, American judges decided the first court cases involving assisted conception. The challenges posed by assisted reproductive technologies to law and society made national news then, and have continued to do so into the twenty-first century. This article considers the first technique of assisted conception, artificial insemination, from the late nineteenth century to 1945, the period in which doctors and their patients worked to transform it from a curiosity into an accepted medical technique, a transformation that also changed a largely clandestine medical practice into one of the most pressing medicolegal problems of the mid-twentieth century. Doctors and lawyers alike worried whether insemination using donor sperm was adultery by doctor, producing illegitimate offspring. Drawing upon the legal and scientific literatures, case law, popular sources and medical archives, I argue that insemination became identified in medicine and law as a pressing problem at mid-century after decades of quiet use because of the increasing success of the technique, increasing patient demand, and increasing use -- three interrelated trends that led to increasing numbers of babies whose origins were “in the test tube.” In examining the history of a medical procedure becoming a legal problem, I also trace the development of a medical practice in the face of legal uncertainty and the shifting control of the medical profession over assisted conception. I argue that doctors modified the way they treated patients in response to perceived social and legal condemnation of artificial insemination, keeping tight control over all aspects of the procedure, but that doctors’ persistence in meeting patient demand for fertility treatments despite such condemnation helped make artificial insemination into a medicolegal problem. Once it became identified as a medicolegal problem, artificial insemination became the subject of a broad social discussion, in which medical voices did not receive automatic deference, and medical control was challenged.