KELLY_FINAL.

DOCX (DO NOT DELETE)

11/22/2013 3:36 PM

Whos Your Daddy?: Reproductive Technology and Defining Consent in Okoli v. Okoli
COMMENT

CAROLINE M. P. KELLY*

INTRODUCTION

s society continues to expand, legal change becomes necessary. 1 As demonstrated by Okoli v. Okoli,2 a case where the Massachusetts Appeals Court attached parental rights to an estranged husband who had no biological connection to his estranged wife s twins,3 this legal revamping has not occurred in assisted reproduction technology.4 The law is frequently accused of containing gaps, of being slow or outpaced and thus lagging behind technology, and of needing to respond to new technologies and address new issues.5 This lagging nature of legal rights in the world of assisted reproduction does not parallel the rising popularity of the technology. 6 For example, assisted reproductive technology has continued to grow to include various types of procedures, such as donor surrogacy, surrogacy, and in-vitro
* Candidate for J.D., New England Law | Boston, 2014; B.A., Villanova University, 2010. I would like to thank my parents, Jack and Carrie, as well as Sean, Conor, and Katie for their unconditional love; the New England Law Review Editors and Associates for their tireless efforts; and my New England Law family for being the reason I laugh every day. See SHEILA JASANOFF, SCIENCE AT THE BAR: LAW, SCIENCE, AND TECHNOLOGY IN AMERICA 12 (1995) (discussing how courts were the first to react to the effects of modern industry). 2 963 N.E.2d 730 (Mass. App. Ct. 2012). 3 Id. at 732. 4 See Lyria Bennett Moses, Understanding Legal Responses to Technological Change: The Example of in Vitro Fertilization, 6 MINN. J.L. SCI. & TECH. 505, 51516 (2005) (citations omitted).
5 6 1

Id. See id.

35

KELLY_FINAL.DOCX (DO NOT DELETE)

11/22/2013 3:36 PM

36

New England Law Review

v. 48 | 35

fertilization.7 These procedures assist one out of every seven people with infertility issues.8 At face value, an incidence of [fourteen percent] of the reproductive population puts those who are infertile into one of the largest groups requiring medical attention.9 Additionally, this rise in assisted reproduction has led to an increase in nontraditional families utilizing assisted reproductive technology.10 For example, a 2007 report identified that 65,000 children were adopted into a same-sex parent family.11 Further, according to the 2000 U.S. Census, one of three lesbian couples and one out of five gay couples are raising children.12 Today, 2.7 million women have chosen to be single mothers.13 Given the ramifications of reproductive technology law on parents and potential parents, state legislatures have either failed to address these issues by adopting bright line rules for courts to rely on or attempted to address the issues and ultimately failed.14 As a result, state and federal courts across the country are forced to rely instead on underdeveloped case law, which often leads to inconsistent legal decisions as no two cases are alike.15 Specifically, the issue of consenting to parent is in great flux amongst

7 Christine L. Kerian, Surrogacy: A Last Resort Alternative for Infertile Women or a Commodification of Womens Bodies and Children?, 12 WIS. WOMENS L.J. 113, 114, 117 (1997) (defining donor surrogacy as when an intended parent donates an egg or sperm and an anonymous third party donates the corresponding egg or sperm, and defining surrogacy as when a woman conceives and carries a child for an intended parent). More specifically, in vitro fertilization is an assisted reproduction procedure that involves mixing female and male sex cells in a laboratory environment; once the egg is fertilized, it is transferred back into the womans body. Moses, supra note 4, at 510. 8 INFERTILITY IN THE MODERN WORLD: PRESENT AND FUTURE PROSPECTS 18 (Gillian R. Bentley & C.G. Nicholas Mascie-Taylor eds., 2000).

Id. See infra notes 1113 and accompanying text. 11 Taylor Gandossy, Gay Adoption: A New Take on the American Family, CNN (June 27, 2007, 11:04 AM), http://articles.cnn.com/2007-06-25/us/gay.adoption_1_gay-adoption-straightparents-williams-institute?_s=PM:US.
10

Courtney G. Joslin, The Legal Parentage of Children Born to Same-Sex Couples: Developments in the Law, 39 FAM. L.Q. 683, 683 (2006).
13 Single Mothers by Choice, REPROD. SCI. CENTER, http://rscbayarea.com/patients/singlemothers-by-choice (last visited Nov. 19, 2013). 14 See Elizabeth E. McDonald, Note, Sperm Donor or Thwarted Father? How Written Agreement Statutes Are Changing the Way Courts Resolve Legal Parentage Issues in Assisted Reproduction Cases, 47 FAM. CT. REV. 340, 341 (2009).

12

See id. (Without a statute to follow, courts often made decisions based on the perceived best interests of the child and common law presumptions of parenthood, regardless of the parties' intentions concerning parenthood . . . .).

15

KELLY_FINAL.DOCX (DO NOT DELETE)

11/22/2013 3:36 PM

2013

Whos Your Daddy?

37

several state courts.16 For instance, states are differentiating what weight to give the parties intent involved in artificial reproduction17 and what weight to give to written agreements regarding parental intent. 18 Whether one intends to parent is a significant question that carries with it heavy legal obligations and rights for both parent and child.19 And yet legislatures have failed to grapple with how intent should apply and when legal rights should attach in artificial reproduction, leading to unjust results. 20 In Okoli v. Okoli,21 the courts holding was wrong as it directly opposes Massachusetts precedent and departs from the trend in Massachusetts law to embrace assisted reproduction, the rights of those involved, and expanding the family unit at large.22 In particular, assisting in the production of a child through reproductive technology is not the same as consenting to parent a child.23 I. Background A. The Laws Response to Assisted Reproductive Technology 1. Early Developments

Despite the prevalence in society:

[The] law is uncertain, normatively undesirable, or nonexistent. Critics argue . . . that technological change creates reasons to change the law. Then authors take the failure to make the sorts of changes suggested by them promptly as a sign that the law is

16 Melanie B. Jacobs, Intentional Parenthood's Influence: Rethinking Procreative Autonomy and Federal Paternity Establishment Policy, 20 AM. U. J. GENDER SOC. POLY & L. 489, 490 (2012) (The relationship between intent, conception, and procreation has created a gulf of inconsistency between how legal parentage is determined in the assisted reproductive technologies . . . context compared with the traditional paternity establishment context.). 17 Compare Johnson v. Calvert, 851 P.2d 776, 782 (Cal. 1993) (giving deference to the adoptive parents instead of the birth mother in a surrogacy arrangement), with Matter of Baby M, 537 A.2d 1227, 1250 (N.J. 1988) (finding a surrogacy arrangement void as a birth mother has a right to change her mind and keep the baby). 18 Compare In re K.M.H., 169 P.3d 1025, 1039 (Kan. 2007) (finding that a sperm donor could only seek parental status if he had used a written agreement before the arrangement with the mother began), with A.Z. v. B.Z., 725 N.E.2d 1051, 105657 (Mass. 2000) (refusing to enforce a written agreement as parties should not be bound to agreements regarding family relationships). 19 20 21 22 23

Jacobs, supra note 16, at 490. Id. 963 N.E.2d 730 (Mass. App. Ct. 2012). See, e.g., Woodward v. Commr of Soc. Sec., 760 N.E.2d 257, 269 (Mass. 2002). See infra Part III.A.

KELLY_FINAL.DOCX (DO NOT DELETE)

11/22/2013 3:36 PM

38

New England Law Review outpaced by or has failed to respond to technological change.24

v. 48 | 35

Thus, the law regarding assisted reproductive technology has become outdated and inconsistent.25 Beginning in the 1920s, courts in the United States, and around the world, started showing a reluctance to develop new legal approaches to fit the advances in assisted reproductive technology.26 For example, a 1921 Ontario Supreme Court decision, Orford v. Orford,27 found that artificial insemination was an adulterous act. 28 The court reasoned that adultery was committed not in the moral turpitude of the act of sexual intercourse but in the voluntary surrender to another person of one s reproductive powers.29 2. Modern Responses to Assisted Reproductive Technology

Critics have attributed this outdated handling of assisted reproductive cases to a lack of uniform federal laws and underdeveloped state laws. 30 The only federal regulation on assisted reproduction is the Fertility Clinic Success Rate and Certification Act of 1992.31 Therefore, states enacted statutes to compensate for the lack of federal legislation, which reflect an inconsistency amongst jurisdictions about how to handle assisted reproductive technology and the rights of those involved. 32 Family law precedent requires the legislature to weigh the emotional and financial interests of the child to be supported by two parents and the intent of the parties involved in this decision.33 However, states have varied in this weighing task when writing their respective statutes. 34 For example,

24 Moses, supra note 4, at 517; see also McDonald, supra note 14, at 340 (Although assisted reproduction has expanded to meet the needs of these new-aged parents, the legal system remains years behind, often leading to complicated child custody disputes between the parties.). 25 See Moses, supra note 4, at 517. 26 See Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination, 77 WASH. L. REV. 1035, 105759 (2002).

(1921) 58 D.L.R. 251 (Can. Ont.). See Bernstein, supra note 26, at 105859 (citing Orford, 58 D.L.R. at 25455). 29 Id. (citing Orford, 58 D.L.R. at 258). 30 See Moses, supra note 4, at 538. 31 Id. at 540 (citing 42 U.S.C. 263a-1 to a-7 (2000)). 32 See id. at 535. 33 See McDonald, supra note 14, at 341. 34 Compare CAL. FAM. CODE 7613(b) (West 2012) (providing absolutely no paternity action claims to sperm donors), and D.C. CODE 16-909(e)(1) (2011) (specifying there must be an intent to parent in the statute), with KAN. STAT. ANN. 38-1114(f) (2000) (weighing heavily the intent of would-be parents and requiring written agreements regarding intent).
28

27

KELLY_FINAL.DOCX (DO NOT DELETE)

11/22/2013 3:36 PM

2013

Whos Your Daddy?

39

Louisiana and New Hampshire placed strict restrictions on in-vitro fertilization, while Virginia emphasized other details, such as medical disclosures and HIV testing.35 3. Massachusetts Response to Assisted Reproductive Technology

The Massachusetts legislature enacted Chapter 46, 4B of the Massachusetts General Laws stating: Any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband. 36 Additionally, the judicial branch in Massachusetts has more recently approached assisted reproductive cases by giving deference to the intent of the parties.37 The Massachusetts Supreme Judicial Court (SJC) reviewed a case in 2002, Woodward v. Commissioner of Social Security, where a wife sought Social Security survivor benefits for her twins conceived through artificial insemination from her deceased husband s preserved semen.38 The Court decided that the wife had to prove that the decedent consented to the assisted reproduction and consented to supporting the child.39 This holding showed the necessity of a dual-meaning approach to consent with assisted reproductive technologyfirst by showing consent to artificially reproduce followed by showing consent to parent. 40 Despite this precedent, however, Okoli v. Okoli took a step backwards and highlighted the continuing issues surrounding assisted reproduction.41 II. Courts Opinion: Okoli v. Okoli A. Facts The plaintiff, Chukwudera B. Okoli (husband), and the defendant, Blessing N. Okoli (wife), were married on October 4, 1991 in Boston, Massachusetts.42 During their marriage, the couple sought in-vitro fertilization and was placed on a waiting list for donor eggs and donor sperm at Boston IVF.43 The couple grew estranged and began living apart,

35 See LA. REV. STAT. ANN. 9:12133 (2000); N.H. REV. STAT. ANN. 168-B:12-15, B:29-31 (2001); VA. CODE ANN. 32.145.3 (2011); VA. CODE ANN. 54.1-2971.1 (2009). 36 37 38 39 40 41 42 43

MASS. GEN. LAWS ch. 46, 4B (2010). See Woodward v. Commr of Soc. Sec., 760 N.E.2d 257, 260 (Mass. 2002). Id. Id. at 269. Id. See 963 N.E.2d 730, 73335 (Mass. App. Ct. 2012). Id. at 73132. Id. at 732.

KELLY_FINAL.DOCX (DO NOT DELETE)

11/22/2013 3:36 PM

40

New England Law Review

v. 48 | 35

resulting in their separation in November 2000.44 In the separation agreement, the couple divided their acquired assets and agreed to divorce.45 In November 2001, the wife received notice that donor eggs were available.46 The wife asked her estranged husband for consent to move forward with the procedure, but he refused.47 In response to the husbands resistance, the wife enlisted the help of a friend, Amad Onujiogu, who arbitrated the couples separation and asset division.48 Mr. Onujiogu wrote an agreement for the parties regarding the conditional terms to sign the invitro fertilization (IVF) consent form; eventually, the husband hesitantly agreed, and the parties signed the conditional agreement. 49 The terms of the written agreement specified that the husband consented to the fertility procedure on the condition that he would not have financial obligations to the child.50 The judge in the probate court found that the husband consented to the in-vitro fertilization on the presumption that his consent was conditional on these terms. 51 The wife began in-vitro fertilization treatments using donor eggs and donor sperm. 52 After several unsuccessful attempts, she became pregnant in November 2002, which resulted in the birth of two children.53 B. Procedural History In divorce proceedings on September 28, 2006, the wife filed for child support for the two children in the Suffolk County Probate and Family Court54 where the husband was ordered to pay child support. 55 The husband appealed this decision to the Massachusetts Appeals Court,, arguing that his conditional consent based on the 2001 agreement did not qualify as consent under the Massachusetts statute. 56

Brief for Plaintiff at 4, Okoli v. Okoli, 963 N.E.2d 730 (Mass. App. Ct. 2012) (No. 2010-P1351). 45 See id. at 710. 46 Okoli, 963 N.E.2d at 732. 47 Id. 48 Id. at 732 & n.3. 49 See id. 50 Id. 51 Id. at 732. 52 Okoli, 963 N.E.2d at 731, 733. 53 Id. 54 Brief for Plaintiff, supra note 44, at 8. 55 Okoli, 963 N.E.2d at 730. 56 Id. at 733. Husband also argued that the consent given was void due to duress as the wife had threatened to withdraw her support of his citizenship application, and the signature

44

KELLY_FINAL.DOCX (DO NOT DELETE)

11/22/2013 3:36 PM

2013
C.

Whos Your Daddy?

41

The Courts Holding and the Husbands Arguments

The court held that since the husband signed the IVF consent form, he consented to create a child and was responsible for all parental rights. 57 The husband argued that his consent was conditioned on the 2001 signed agreement by the parties and therefore, was not the consent required by the Massachusetts artificial insemination statute. 58 The court interpreted this statute and the meaning of the word consent by evaluating Massachusetts case law and case law from other jurisdictions.59 Subsequently, the Okoli court determined that the statutes language implies consent to create a child and therefore, creates parental rights and responsibilities.60 The court also upheld the statute because the parties constituted the husband and wife specified in the statute, and the couple was not yet divorcedonly separated at the time.61 Based on this analysis and the rejection of the husbands other two arguments, the Massachusetts Appeals Court affirmed the probate courts determination.62

ANALYSIS
III. The Court Failed to Apply the Dual-Prong Approach to Determine Consent as Established by Massachusetts Precedence. A. The Court Failed to Apply a More Equitable Approach to Determine Consent with Assisted Reproductive Technology. The court should have developed a more flexible interpretation of the artificial insemination statute, given the untraditional nature of families using assisted reproductive technology.63 By forcing parental status onto Mr. Okoli, the court interpreted consent within the statute to be all encompassing.64 Rather than one blanket consent obligation, the court

on the final consent was forged by the wife. Id. Husband further appealed to the Supreme Judicial Court in November 2012, which was denied. Okoli v. Okoli, 977 N.E.2d 561 (Mass. 2012). Okoli, 963 N.E.2d at 73536. Id. at 733. 59 Id. at 73335; see, e.g., Laura W.W. v. Peter W.W., 856 N.Y.S.2d 258, 26162 (N.Y. App. Div. 2008); T.F. v. B.L., 813 N.E.2d 1244, 1251 (Mass. 2004); Alexandria S. v. Pac. Fertility Med. Ctr., Inc., 64 Cal. Rptr. 2d 23, 26 (Cal. Ct. App. 1997). 60 Okoli, 963 N.E.2d at 733. 61 Id. at 733 n.5. 62 Id. at 730, 735 n.5. 63 See Woodward v. Commr of Soc. Sec., 760 N.E.2d 257, 269 (Mass. 2002) (requiring a two-prong consent in order to prove parentage).
58 64 57

See Okoli, 963 N.E.2d at 735.

KELLY_FINAL.DOCX (DO NOT DELETE)

11/22/2013 3:36 PM

42

New England Law Review

v. 48 | 35

should have interpreted the statute using a dual-prong approach to determine whether a party: (1) clearly consented to assist in the reproduction of a child; and (2) intended to oblige oneself to full parental duties and obligations.65 The Okoli court had a single-prong approach in determining consent within the statute because it failed to differentiate conception from procreation.66 Now, [artificial reproduction technology] allows us to separate voluntary acts that result in conception and voluntary acts for the purposes of reproducing. While the acts may be related, they are not the same.67 Natural conception involves two parties each consenting to a sexual act that has the inherent capability to produce a child regardless of the parties intent.68 While biologically complex, natural conception requires a single meaning of consent because natural conception is a single, isolated act.69 Assisted reproductive technology, on the other hand, is a purposeful, technological creation of life.70 This technology often requires multiple attempts and a significant amount of money; it may also require multiple parties and cause health risks.71 Rather than a single act, assisted reproduction begins when an individual or a couple decides whether or not to have a child.72 Then, the individual or couple decides if the child can be supported.73 Next, the individual or couple decides which assisted reproductive technique is right for themranging from using a surrogate to using a sperm donor.74 Therefore, assisted reproductive technology requires a deeper analysis of consent for each step in the process of creating

See Woodward, 760 N.E.2d at 269. See Jacobs, supra note 16, at 49394. 67 Id. 68 See How Pregnancy http://www.plannedparenthood.org
66

65

Happens,

PLANNED

PARENTHOOD,

/info-for-teens/pregnancy/am-pregnant-33831.asp (last visited Nov. 19, 2013). 69 John C. Jarrett, M.D., Your Fertility: Understanding Natural Conception, BABYZONE, http://www.babyzone.com/getting-pregnant/how-to-get-pregnant/fertility-naturalconception_66861 (last visited Nov. 19, 2013). 70 Health Guide: Assisted Reproductive Technologies, N.Y. TIMES, http://health.nytimes.com/ health/guides/disease/infertility-in-men/assisted-reproductive-technologies.html (last visited Nov. 19, 2013). See id. See, e.g., Jennifer Wolf, Becoming a Single Mother by Choice, ABOUT SINGLE PARENTS, http://singleparents.about.com/od/support/tp/single_mother_by_choice.htm (last visited Nov. 19, 2013) (explaining the various questions a woman considers before becoming a single mother).
72 73 74 71

See, e.g., id. See, e.g., id.

KELLY_FINAL.DOCX (DO NOT DELETE)

11/22/2013 3:36 PM

2013

Whos Your Daddy?

43

a child.75 A dual-meaning approach to interpreting consent allows courts to analyze the intent to create a child and the intent to parent that child.76 While a single-meaning approach to consent corresponds to the inherent nature of natural conception, a deeper analysis of consent parallels the extensive process of assisted reproduction.77 Opponents of the dual-meaning approach to consent may argue that consenting to assisted reproductive technology is, in fact, consenting to parent regardless of subjective intent. 78 However, the SJC has already expressly disregarded this simple approach. 79 Conversely, it explicitly adopted the dual-meaning approach to consent in Woodward v. Commissioner of Social Security.80 Despite the fact that Woodward came from the highest Court in Massachusetts and was argued in the husband s brief, the Okoli court never addressed it or its reasoning.81 Because the dualmeaning approach to consent in assisted reproduction has precedent under Massachusetts law, the Okoli court clearly erred in making no mention of it.82 In Woodward, the SJC decided that the wife has the burden to prove the deceased genetic parents affirmative consent to both requirements for posthumous parentage: posthumous reproduction and the support of any resulting child.83 When the SJC faced a consent issue regarding the distribution of state-funded Social Security benefits, the Court required that various levels of consent be shown.84 Yet, when the Okoli court faced a consent issue in a nontraditional family structure, it reverted back to a traditional one-step approach to consent.85 Thus, even if it could be argued that the court in Okoli simply attempted to secure additional financial support for the children, it was clearly of no concern to the Woodward Court, which required the wife to jump through hoops to secure financial support for the children.86 Additionally, if the Okoli court disagreed with
See, e.g., Woodward v. Commr of Soc. Sec., 760 N.E.2d 257, 269 (Mass. 2002). See id. at 269. 77 See supra text accompanying notes 6776. 78 See Okoli v. Okoli, 963 N.E.2d 730, 734 (Mass. App. Ct. 2012); see also T.F. v. B.L., 813 N.E.2d 1244, 1249 n.5 (Mass. 2004).
76 75

See Woodward, 760 N.E.2d at 26970. Id. 81 Brief for Plaintiff, supra note 44, at 21; Okoli, 963 N.E.2d at 73435. 82 See Okoli, 963 N.E.2d at 73435 (citing various case law excluding the Woodward case). 83 Woodward, 760 N.E.2d at 269 (emphasis added). 84 See id. 85 Okoli, 963 N.E.2d at 735. 86 See Woodward, 760 N.E.2d at 271 (It is undisputed in this case that the husband is the genetic father of the wife's children. However, . . . that fact, in itself, cannot be sufficient to establish that the husband is the children's legal father for purposes of the devolution and
80

79

KELLY_FINAL.DOCX (DO NOT DELETE)

11/22/2013 3:36 PM

44

New England Law Review

v. 48 | 35

the Woodward holding, then the court failed to explain its reasoning in diverting from Massachusetts precedent. 87 Instead, the court remained silent.88 Furthermore, Woodward still required a dual-meaning approach showing, even when the genetic connection between the husband and the children was undisputedthe wife froze and used the husbands sperm.89 Yet in Okoli, donor sperm was used, and Mr. Okoli had zero biological connection to the resulting children.90 Nonetheless, the court held him financially responsible with no further inquiry or showing required. 91 The courts failure to mention or address the Woodward case was a true disregard of established precedent and a further violation of parentage rights at large and intent of the parties. 92 B. Under the Dual-Prong Approach, the Husband Never Consented to Biologically Assist in Reproduction and Never Consented to Parental Obligation. 1. First Prong

Applying the dual-meaning approach to consent, Mr. Okoli fails under the first prong as he did not agree to consent biologically to assist in reproduction.93 Mrs. Okoli birthed her twins after conceiving them using donor sperm and donor eggs.94 Mr. Okoli did not provide any genetic material for this process; he merely provided his signature, required as the legal husband, on the consent form.95 By signing the consent form, Mr. Okoli allowed another person to biologically assist Mrs. Okoli with her wish to become a mother.96 Mr. Okoli protected his intentions in this procedure, in an additional writing, expressly providing that he will not parent the resulting children.97 The court rejected this explicit agreement despite conceding that Mr. Okoli only agreed to this procedure conditioned on those terms.98 The Okoli court refused to look into the explicit agreement
distribution of his intestate property.).
87 88 89 90 91 92 93 94 95 96 97 98

Okoli, 963 N.E.2d at 73435 (citing various case law excluding the Woodward case). Id. Woodward, 760 N.E.2d at 271. Okoli, 963 N.E.2d at 731. Id. at 73536. See id. at 73435 (citing various case law excluding the Woodward case). Compare Woodward, 760 N.E.2d at 269, with Okoli, 963 N.E.2d at 733. Okoli, 963 N.E.2d at 731. See id. at 732. See id. See id. Id.

KELLY_FINAL.DOCX (DO NOT DELETE)

11/22/2013 3:36 PM

2013

Whos Your Daddy?

45

even when Mr. Okoli had no biological connection to the children. 99 2. Second Prong

Applying the dual-meaning approach to consent, Mr. Okoli fails under the second prong as he did not consent to bind himself to parental rights and obligations.100 Because procreation through assisted reproductive technology involves multiple parties, a written agreement between the multiple parties protects any intentions the parties may have. 101 With assisted reproductive technology, the decision to begin this process is methodical, deliberate, [and] calculated.102 To match this methodical reproductive process, written agreements provide an important vehicle for parties to define their deliberate intentions.103 In Okoli, the written agreement explicitly displayed the husband s intention to consent to the procedure on the condition that he would not be financially or legally responsible in the future for the resulting child.104 The court simply disregarded the signed contract, which defined the parties intentions, despite the fact that [t]he judge found that the husband consented to the wifes IVF procedure conditioned on these terms.105 It is arguable that courts should not give weight to written agreements: husband and wife are specified in the statute to be responsible to parent a child, thus making any written agreement terms superfluous.106 This rigid approach is not realistic, given the overwhelming statistics of those utilizing assisted reproductive technology who do not fit into either the husband or wife category.107 Written agreements, however, would supplement the statute, allowing courts to make a fair decision in evaluating the intentions of theoften times, multipleparties involved.108 While Mr. and Mrs. Okoli were legally married, their written agreement clearly established their separation and Mr. Okolis compliance with Mrs.

See id. See Woodward v. Commr of Soc. Sec., 760 N.E.2d 257, 269 (Mass. 2002). 101 McDonald, supra note 14, at 350. 102 Id. 103 Id.; see also Marjorie Maguire Shultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for Gender Neutrality, 1990 WIS. L. REV. 297, 307 (1990) (Modern reproductive technology has greatly enhanced the potential for intention in procreative behavior.); Richard F. Storrow, Parenthood by Pure Intention: Assisted Reproduction and the Functional Approach to Parentage, 53 HASTINGS L.J. 597, 642 (2002).
100 104 105 106 107 108

99

Okoli, 963 N.E.2d at 732. Id. at 73132. Id. at 734. See supra text accompanying notes 1113. McDonald, supra note 14, at 350.

KELLY_FINAL.DOCX (DO NOT DELETE)

11/22/2013 3:36 PM

46

New England Law Review

v. 48 | 35

Okolis desire to have a child.109 Because Mr. and Mrs. Okolis marriage is not as simple as husband and wife, the application of the law cannot be inflexible.110

CONCLUSION
Instead of making a progressive decision in assisted reproductive techniques, the Massachusetts Appeals Court took a step backwards.111 The Okoli courts holding was wrong because assisting in the production of a child through reproductive technology cannot be equated with consenting to parent a child.112 This decision is not only inconsistent with past Massachusetts decisions, but also stifles the rights of future parties involved in assisted reproductive technology.113 In the future, applying a dual-approach test to determine consent would enable courts to make a more just decision regarding the intent of the multiple parties involved. 114 A dual-approach test best allows Massachusetts courts to continue on their path towards expanding the family unit115a progressive trend that was tarnished by the Okoli v. Okoli decision.116

Okoli, 963 N.E.2d at 733 n.5. Brief for Plaintiff, supra note 44, at 45. 111 See supra notes 2123 and accompanying text. 112 See supra Part III.A. 113 See supra Part III.A. 114 See supra Part III. 115 See, e.g., Mass. v. U.S. Dept. of Health & Human Servs., 682 F.3d 1, 16 (1st Cir. 2012) (finding that the way Massachusetts seeks to interpret DOMA would expand the family unit and reject the notion that marriage is solely between a man and a woman); Goodridge v. Dept of Public Health, 798 N.E.2d 941, 967 (Mass. 2003) (concluding that expanding the institution of civil marriage in Massachusetts to include same-sex couples will not lead to interstate conflict).
110 116

109

See supra Part III.A.