Test-Tube Test Case

There are at least 10,000 test-tube children in the U.S. (some doctors estimate as many as 40,000). They have been born in the last 25 years as the result of artificial insemination, with the doctor using semen supplied by a carefully chosen anonymous donor. Their legitimacy has always been a matter for speculation. A Canadian court has ruled donor babies illegitimate, but in the U.S. the question had remained moot. Last week a tangled divorce and custody case projected it into the headlines.

In Chicago Superior Court Mary Doornbos, 36, demanded full custody of her son David, 5, on the ground that he was not her husband's child but the product of artificial insemination, to which her husband, Machinist George Doornbos, 48, had consented. Further, she asked the court to approve artificial insemination.

Judge Gibson E. Gorman, a law graduate of Chicago's Loyola University, gave Mary Doornbos the custody of her son, but otherwise ruled flatly against her. Artificial donor insemination, he held, is adultery and is contrary to public policy, and the offspring is illegitimate. (He raised no objection to artificial insemination using the husband's semen). Fertility doctors felt that the ruling puts them on the spot. Most of them (except Roman Catholics) have felt that donor insemination was ethically permissible if both husband and wife signed a written request for it. But because they were in a legal no man's land, doctors talked little about their work; many, have taken the added precaution of mixing the husband's subfertile semen with the donor's, so that nobody could ever be sure that the husband was not in fact the father.

Said Northwestern University's Dr. Irving F. Stein Sr.: "It's a very unfair ruling. We were shocked to be told that we were doing something immoral. More and more people are asking to have babies this way every day."

Some lawyers questioned whether Judge Gorman's dictum could have any widespread practical effect on the legitimacy of test-tube babies. When a husband accepts and represents a child as his own, its legitimacy is established to the satisfaction of most jurisdictions.

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