Scottish Court of Session Decisions

LORD WHEATLEY'S OPINION.—The pursuer seeks decree of divorce from the defender on the ground of her adultery, and prima facie his case is essentially simple. The parties were married on 25th August 1952, and it is a matter of agreement that they have not lived together or had marital relations since 31st May 1954. On 10th July 1955 the defender admittedly gave birth to a female child in Brooklyn, New York, and on that historical narrative of events the pursuer asks the Court to find proven facts, circumstances and qualifications from which an inference of the defender's adultery can be drawn. In the uncomplicated days before science began to innovate on the natural processes of procreation, the lapse of time between the last act of marital intercourse and the birth of the child would have led to the inevitable inference that, the defender had been guilty of an adulterous act with another man by means of the normal and natural physiological mechanism, as a result of which the child was conceived. The defender, however, has tendered an explanation by way of defence, which is unique in the annals of our law, and which seeks to establish that she conceived the child not as a result of sexual intercourse with another man, as that phrase is commonly understood, but as a result of artificial insemination from a donor. She does not aver, however, that the pursuer was a consenting party to such an artificial process of conception, and the pursuer maintains that he never agreed to the defender adopting it, if in fact it ever took place. The defender submits that artificial insemination by a donor, even without the consent of the husband, is not adultery as the law understands and has interpreted that term, and that proof of conception by such means would rebut the inference which would otherwise be raised from the fourteen months period of non-access followed by the birth of a child.

The issue comes before me as a matter of relevancy, since the pursuer has submitted that such a general defence is irrelevant, on the ground that artificial insemination by a donor without the consent of the husband is adultery in the eyes of the law, and I am accordingly obliged to accept the defender's averments pro veritate at this stage. It should be noted, however, for the purposes of the record, that, while the defender does not aver that the artificial insemination by a donor was without the consent of her husband, the whole argument proceeded on the basis that there was no such consent. Apart altogether, however, from the general issue raised by the pursuer's plea to the relevancy, there is, by concession of defender's counsel, a justifiable criticism of the defender's pleadings on the ground that they are completely lacking in specification on this vital point of defence. Having admitted the long period of non-access, the birth of the child, and that the pursuer is not the father of the child, all that the defender states by way of pleading is that the child was conceived as the result of artificial insemination by a donor. Such a bald assertion offends against all the canons of specification and fair notice, and it was recognised by her counsel that, unless much fuller specification was given in relation to the time, place and circumstances of the alleged artificial impregnation of the defender, the attack on the relevancy of the defence would have to be sustained on this secondary, technical, but none the less important and justifiable ground. Defender's counsel accordingly intimated that, in the event of my finding that as a legal proposition artificial insemination by a donor was not adultery, he would seek leave to amend his pleadings by providing the necessary specification to satisfy the requirements of legal pleadings, but urged that I should in the first instance give my decision on the general issue raised, since a judgment adverse to the defender on that point would obviate the necessity for such an amendment. This proposal may spring from an unwillingness on the part of the defender to divulge information relating to the identity of the operator and the place where the operation was carried out unless it is absolutely necessary to do so, and, if that be the case, the Court does not look with favour on such secrecy or lack of candour, whatever the motives therefor may be. Such a course is also undesirable from a procedural point of view, since in effect it means that in the event of my reaching a finding favourable to the defender on the general issue I would have to make a declaratory finding to that effect, continue the cause to enable the defender to make such further specific averments as she thought fit, thereafter consider, if need be, the adequacy of such additional averments from the point of view of specification, and finally pronounce an interlocutor on the pursuer's plea to the relevancy of the defences as a whole. Had it not been for the fact that pursuer's counsel indicated that he was not averse to such a course being followed, I would have insisted on the amendments being made before considering the case at all; but, in view of the obvious anxiety of counsel for both parties to obtain an early decision on the general issue raised, I have decided, albeit reluctantly, to follow the course proposed.

Before turning to examine the legal arguments on the major issue, it is desirable that I should set forth to the best of my ability what is involved in artificial insemination. Although this is a unique and novel case in our Courts of law, the term "artificial insemination by a donor" is glibly used without any explanation of the process in the pleadings, it being apparently assumed that such unusual practices and interference with the natural processes of procreation fall within that omniscience on all worldly matters which is described, sometimes euphemistically and sometimes with a complimentary but quite unjustified faith, as "judicial knowledge." My own particular knowledge of this subject is culled from the articles thereon in some of the journals to which I was referred in the course of the debate, but fortunately my comprehension of the process, thereby derived, seems to square with that of counsel when they were addressing themselves to the subject at the Bar.

Artificial insemination is the process whereby the seed of the male is extracted from the male body, enclosed in a receptacle, and subsequently inserted into the female sexual organ, presumably by means of a syringe, thereby reproducing the same end-result as follows from the natural and unrestricted act of full sexual intercourse. This scientific innovation on the natural processes substitutes a syringe containing male seed for the male sexual and reproductive organs, and the act of conception, if the seed eventually fertilises, is achieved without the presence of the male body. Technically, although I have no particular knowledge of this, I presume that the woman could acquire the seed and operate the syringe herself, thereby excluding the presence of any other person during the actual insertion. There are apparently three recognised systems of artificial insemination. The first is A.I.H., which is insemination in the manner indicated by seed extracted from the husband. The second is A.I.D. which is effected by the introduction into the female organ of seed extracted from a male known as the "donor," and who in practice seems to be a man unknown to the recipient, although there would appear to be no reason why the donor should not be known to or indeed selected by the recipient, if the latter preferred it that way and the donor was agreeable. This method may be employed either with or without the consent of the husband. If such a practice constitutes adultery on the part of the wife, the fact that the husband has consented would not prevent the act from being adultery, but it would not be adultery on which the husband could found, since he had connived at it. The third method is somewhat cynically known as C.A.I, or confused artificial insemination, wherein there is used for the impregnation of the woman a mixture of the seed of the husband and the seed of a donor.

There are manifestly grave moral, ethical, social, and personal considerations involved in the practice of artificial insemination in its various forms which will no doubt be fully deployed elsewhere. It is almost trite to say that a married woman who, without the consent of her husband, has the seed of a male donor injected into her person by mechanical means, in order to procreate a child who would not be a child of the marriage, has committed a grave and heinous breach of the contract of marriage. The question for my determination, however, is not the moral culpability of such an act, but is whether such an act constitutes adultery in its legal meaning, A wife or a husband could commit an act of gross indecency with a member of the opposite sex which would be a complete violation of the marital relationship, but which could not be classified as adultery. It would indeed be easy according to one's personal viewpoint to allow oneself to be influenced by the moral, ethical, social, and personal considerations to which I have referred and to reach a conclusion based on these considerations, but this problem which I am called upon to solve must be decided by the objective standard of legal principles as these have been developed and must be confined to the narrow issue of whether this form of insemination constitutes adultery in the eyes of the law. If it is not adultery, although a grave breach of the marriage contract, that is a matter for the Legislature if it be thought that a separate legal remedy should be provided.

In determining whether the marital offence (which I opine it to be, whatever view one takes of its nature) of being impregnated by the seed of another man without the husband's consent constitutes adultery in its legal sense, one naturally seeks a solution from the definitions of "adultery" in the works of our leading legal writers or in reported decisions. Some of our great legal writers, however, do not even seek to define it, while others, in referring to it, use terms which are more descriptive than definitive. This may be due to the fact that in earlier days, when life was regulated by the natural rather than the scientific order of things, people knew what was meant by adultery and what its concomitants were. Where, however, attempts were made to describe adultery, if not to provide an exhaustive definition of it, the idea of conjunctio corporum seems to be an inherent concomitant—a conception of the process which incidentally can likewise be found in the Book of Deuteronomy, the writings of St Paul and the works of the Canonists. The idea that adultery might be committed by a woman alone in the privacy of her bedroom, aided and abetted only by a syringe containing semen, was one with which the earlier jurists had no occasion to wrestle. Certainly this form of perpetuation of the species does not conform to the common conception of adultery. None-the-less the argument advanced in support of the contention that it does constitute adultery was powerfully advanced. I accordingly turn to consider the views of the earlier jurists on the meaning of the term "adultery."

The Scots Act of 1563, cap. 10, which was passed shortly after the Reformation and introduced divorce into the law of Scotland for the first time, prefaces the enactment of divorce for adultery with a condemnation of the practice in denunciatory terms, and castigates those who have been guilty of the offence as people who had no regard to the commandments of God but only to their sensualities, filthy lusts and pleasure.

Neither Stair nor Erskine defines adultery, but Sir George Mackenzie in his treatise on Criminal Law (at p. 86) describes it as "the violation of another's bed, and is committed by a married person lying with one unmarried, or an unmarried person lying with one who is married."

Bankton (I, v, 126) states that, where one party to the marriage is guilty of deeds inconsistent with the nature of matrimony, the law gives relief to the innocent person; and goes on to say that divorce may be obtained, upon proof of adultery, at the instance of the party injured.

Baron Hume in his Lectures (Stair Society, vol. v) states (vol. i, p. 83):

"The second obligation of the married pair is that of fidelity to the marriage bed,"

and continues:

"This, though certainly true of both parties, is more especially so on the part of the female, whose infidelity … may impose a spurious offspring on him [the husband]."

He proceeds, however, to point out that in Scotland the law is one and the same for both spouses, and the remedy of divorce is open alike to either.

While differing with Six George Mackenzie on a number of matters, Baron Hume, in his treatise on Crimes (vol. i, p. 455), adopts to all intents and purposes the former's definition of adultery, although he uses the expression "has knowledge of" (which must mean carnal knowledge of) and not the expression "lying with." In Bell's Dictionary, (7th ed.) p. 25, adultery is said to be the sin of incontinence in a married person. Fraser, in his treatise on Husband and Wife (vol. ii, p. 1142), states that adultery, by the law of Scotland, consists in the carnal connexion of a married person with any other person than him or her to whom she or he is married. As phrased, this obviously means carnal connexion with a person of the opposite sex. The learned author then goes on to examine other systems of law in which the term "adultery" has been defined or described, such as the Mosaic law, the Roman law, the Canon law, the law of France, and the law of Holland. It is unnecessary to digress into these various codes, but it is perhaps sufficient to say that the conception of sexual intercourse or carnal knowledge is common to all of them. The element of sexual intercourse is likewise regarded as an essential concomitant of adultery in the law of England (cf. Latey on Divorce, (14th ed.) p. 79, where adultery is said to mean willing sexual intercourse between a husband or wife and one of the opposite sex while the marriage subsists).

Taking a line through these various definitions or descriptions of what constitutes adultery, there runs the basic conception that adultery involves sexual intercourse or carnal connexion. While Bankton refers to deeds inconsistent with the nature of matrimony, which is a much wider phrase than adultery, this phrase must be read in its context, and, when so read, it obviously refers to adultery when related to divorce. When Baron Hume in his Lectures refers to the possibility of infidelity to the marriage bed by a wife resulting in the imposition of a spurious offspring on the husband, he is not, in my view, thereby laying down that the result of the infidelity is the test of adultery, but is merely pointing out the possible aggravation which might ensue from the primary act of unfaithfulness. If, then, as I deem it to be, sexual intercourse or carnal connexion between a consenting spouse and a member of the opposite sex who is not the other spouse is the basic criterion of adultery, the question arises—What is sexual intercourse or carnal connexion, and, in particular, can artificial insemination fall within such a definition? Certainly no assistance can be obtained directly on the latter point from the earlier jurists, whose minds were uncomplicated by the type of scientific expedient with which we are dealing here and whose conception and understanding of such terms as sexual intercourse and carnal knowledge were based on the normal and natural methods of sexual relationship. It is not surprising therefore that one finds in their writings none of the physiological and biological considerations and none of the metaphysical distinctions which studded the arguments presented to me. None-the-less I am satisfied that the solution to the present problem can be found in the basic principles which these earlier writers have enunciated.

In the normal and natural method of performing an act of sexual intercourse there is a mutual surrender both of the sexual and reproductive organs. While the primary purpose of sexual intercourse is procreation, in the eyes of the law surrender of the reproductive organs is not necessary to consummate the act of intercourse. Expedients may be used by the parties to secure birth prevention, or the woman may have previously undergone an operation by which her reproductive organs were removed, or they may have ceased to function from natural causes; and yet the conjunction of the sexual organs, involving at least some degree of penetration, would constitute intercourse and, in the circumstances under consideration, adultery. Thus impregnation per se cannot be a test of adultery, since in the eyes of the law the act of intercourse can be consummated without impregnation, either as a result of natural causes or by the parties resorting to artificial expedients (cf. Baxter v. Baxter, [1948] A. C. 274). It would seem therefore that, in determining such questions as consummation of marriage or adultery, the law looks at the act and not at the result. It is perhaps interesting to note that in Baxter (at p. 289) the Lord Chancellor (Viscount Jowitt), in dealing with the question of what constitutes consummation of marriage, quotes and adopts a passage from Stair's Institutions, (1681 ed.) I, iv, 6, where Lord Stair said:—

"So then, it is not the consent of marriage as it relateth to the procreation of children that is requisite; for it may consist though the woman be far beyond that date; but it is the consent, whereby ariseth that conjugal society, which may have the conjunction of bodies as well as of minds, as the general end of the institution of marriage is the solace and satisfaction of man."

Here, once again, reference is made to the conjunction of bodies which underlies the conception of sexual intercourse, although the degree to which such conjunction requires to take place may give rise to doubt, and, while Lord Stair was considering the act in relation to marriage, it is the same physical process, whether it be carried out under the sanction of marriage or under the stain of adultery. Impregnation, therefore, may be the result of sexual intercourse, may be evidence of sexual intercourse, may be causally connected with sexual intercourse, but it is not necessarily a concomitant of sexual intercourse. It was submitted by senior counsel for the pursuer that, while impregnation could not be the sole test of adultery, any definition of adultery which excludes the impregnation of woman by seed would not be complete. I understood him to mean thereby impregnation by seed by any method. Although not presented in syllogistic form, the pursuer's argument seemed to be that in the given circumstances, while undoubtedly all cases of penetration of the female organ by the male organ were adultery even if impregnation did not take place, so too all cases of impregnation were adultery even if there was no such penetration. This, to my mind, is a legal non sequitur. The argument seems to me to confuse the method with the result. Impregnation may be the result of sexual intercourse, but is not necessarily an essential part of it, and, if it is achieved by other means which do not involve the physical presence of the male and his sexual organ, it is difficult to see how such other means can be classified as sexual intercourse or, to use the more significant phrase, "carnal connexion." The sheet anchor of the pursuer's argument was an obiter dictum of Lord Dunedin in Russell v. Russell, [1924] A C 687, at p. 721, where his Lordship said, after dealing with the question of the wife having been fecundated ab extra:

"And fecundation ab extra is, I doubt not, adultery."

There is no doubt that this dictum was obiter, but any dictumby Lord Dunedin is always worthy of the closest consideration and greatest respect. The argument which prayed it in aid, however, seemed to divorce it from its context. Briefly that argument stated that, if fecundation ab extra in the given circumstances is adultery, it matters not whether the fecundation was at short or long range, and artificial insemination was merely a case of long range fecundation. That facile argument, however, seems to me to ignore the circumstances in regard to which Lord Dunedin opined his view. In the circumstances Lord which he was contemplating there was a close conjunction of the bodies even although there was no penetration of any sort of the female organ by the male organ, but the close juxtaposition of the respective organs enabled an ejaculation of semen from the male organ to enter into the female organ and fertilise. I am satisfied that what his Lordship meant was that where there was a mutual surrender of the bodies to an illicit passion, and there was sufficient proximity of the respective organs to enable seed to pass from one to another, it did not preclude the act from being an adulterous one merely because there had been no penetration. There would be present in such circumstances not only the two bodies, but physical intimacy and sexual stimulation, which resulted in the transfer of seed, and from which the fact of adultery could be inferred. As there can be penetration without emission (which would be adultery) and emission following penetration without fertilisation (which would likewise be adultery), it seems to me that these factors are merely incidentals or accidentals of the adulterous act, which consists of the mutual surrender of the bodies and is evidenced by the degree of familiarity thereby occasioned, which is a complete transgression and violation of the contract of marriage. Whether such a degree of familiarity would require to be established by evidence of some degree of penetration, as recent English decisions seems to suggest, or whether it could be established by evidence of something less, as Lord Dunedin contemplated, does not seem to me to be of vital importance in the present issue, since, whatever view is taken, there is involved in both cases the mutual surrender of the bodies to each other for the purposes of carnal gratification in breach of marital obligations. If the view be taken, as I think it must, that gross indecency short of sexual intercourse is not adultery, however reprehensible it may be, then there must be some defining line between the two, and it is for that reason that the Courts in England seem to have insisted that some degree of penetration must have occurred before sexual intercourse can be said to have taken place. The point does not seem to have arisen for consideration in Scotland, but that may be due to the traditional formula whereby all that the Court has to find are facts, circumstances and qualifications relevant to infer adultery, a course which normally absolves the Court from entering into the distasteful minutiae of evidence of the adulterous act. The genesis of the suggestion that something less than penetration—or at least full penetration—might suffice to constitute adultery is to be found in a dictum of Viscount Birkenhead in Rutherford v. Richardson, [1925] A. C. 1, at p. 11, where his Lordship said:

"Some suggestion was made in argument in this House that this condition [of the woman's private parts], even though inconsistent with penetration, was not inconsistent with some lesser act of sexual gratification. If there were evidence of such an act, it cannot be doubted that, whatever view may have been taken in past ages in the Ecclesiastical Courts, a decree based upon adultery might issue. But it is not open now to the petitioner to rely on some lesser sexual act."

That statement of the law is, in its context, obiter dictum,and it does not define or even indicate the degree of lesser sexual gratification, short of full penetration, which would constitute adultery. Ex facie there is nothing inconsistent between that obiter dictum and the obiter dictum of Lord Dunedin in the following year in the case of Russell v. Russell . This dictum of Lord Birkenhead was considered by Karminski, J., in Sapsford v. Sapsford and Furtado, [1954] P. 394. In that case allegations of adultery in a husband's petition for divorce were denied by the wife and co-respondent, who admitted, however, that the wife had given manual satisfaction. The health of the co-respondent, a man in his later sixties, was poor, and medical evidence showed that normal sexual intercourse might have been difficult for him. Karminski, J., held that, while manual satisfaction would not by itself amount to adultery, the nature of the association and the many opportunities offered for misconduct had been such that, even if a satisfactory coitus had proved impossible, some lesser act of sexual intercourse, amounting in law to adultery, must be inferred. In the course of his judgment Karminski, J., quoted the dictum of Lord Birkenhead in Rutherford v. Richardson, and went on to say:

"If I understand those words of the Lord Chancellor, he had in mind that particular case where there had been at any rate an attempt at sexual intercourse, that is by the introduction of the male organ into the female, but for one reason or another that attempt had not fully succeeded."

This interpretation of Lord Birkenhead's dictum was subsequently approved by the Court of Appeal in Dennis v. Dennis, [1955] P 153. I must confess, however, that for my part I cannot read the words of Lord Birkenhead as restricting the conduct to a case of at least partial penetration, and in that I share the opinion of Hodson, L.J., in Dennis. None-the-less, in that latter case both Singleton, L.J., and Hodson, L.J., expressed the view that there must be at least partial penetration for the act of adultery to be proved. What are perhaps more apposite for the determination of the present case, however, are the views expressed by the Judges in these two cases on the concomitants which require to be present to enable adultery to take place. In Sapsford, Karminski, J., quoted with approval and adopted the phrase of Langton, J., in Thompson (otherwise Hulton) v. Thompson, [1938] P. 162, "that the respondent and the intervener have had mutual intercourse amounting to adultery in law." He then went on to say:

"Mutual intercourse, in my view, means that there has to be intercourse in which both the man and the woman play what may be described as their normal role."

Later on he quotes a passage from Professeur Esmein's treatise on "Le Mariage en Droit Canonique," published in France in 1891, where the author describes adultery as "fornicatio carnalie," which the learned Judge interprets as a carnal union between a man and a woman. In Dennis Singleton, L.J., refers to a passage in Rayden on Divorce where adultery is defined as consensual sexual intercourse between a married person and a person of the opposite sex during the subsistence of the marriage. Accepting that definition, Singleton, L.J., goes on to say that in his view there is no distinction between "sexual intercourse" in the definition of adultery and "carnal knowledge" in the criminal law, where proof of penetration to at least some degree is required. In the same case Hodson, L.J., underlining that since in cases involving allegations of adultery the Court is considering physical matters which must be capable of some precise understanding, stated:

"A man may commit adultery in his heart, but what the courts are dealing with is the physical act which has to be proved in order that a divorce may be obtained, and I think that all the authorities, including the writers on canon law and ecclesiastical law, when they speak of adultery are speaking of the physical act, understood as carrying with it a conception of natural copulation between the sexes."

The physical act in sexual intercourse is presumably the same whether it be carried out during the normal marital relations of spouses, in adultery or in fornication. It is of interest to note, therefore, that in two English cases the fact that a child had been born to a wife by her husband did not preclude the Court from holding that the marriage had not been consummated. In R. E. L. (otherwise R.) v. E. L., [1949] P. 211, Pearce, J., decided that artificial insemination by a (Ordinary), husband, resulting in the birth of a child, did not consummate the marriage, and in Clarke (otherwise Talbott) v. Clarke, (1943) 112 L. J. (P.) 41, Pilcher, J., held that a marriage had not been consummated when in the endeavours to achieve sexual intercourse there had been no penetration, although a child had been conceived by the wife as a result of fecundation ab extraby the husband. I have quoted these English cases at some length, since it seems possible to derive therefrom the following propositions, according at least to the law of England:—1. For adultery to be committed there must be the two parties physically present and engaging in the sexual act at the same time. 2. To constitute the sexual act there must be an act of union involving some degree of penetration of the female organ by the male organ. 3. It is not a necessary concomitant of adultery that male seed should be deposited in the female's ovum. 4. The placing of the male seed in the female ovum need not necessarily result from the sexual act, and if it does not, but is placed there by some other means, there is no sexual intercourse.

I appreciate that the second of these findings does not square with Lord Dunedin's obiter dictum in Russell, which seems to conflict with the decision of Pilcher, J., in Clarke, but, even on Lord Dunedin's standard, the physical presence of the male organ and its close proximity and juxtaposition to the female organ seem to me to be essential ingredients of the act.

I can find nothing to persuade me that the law of Scotland is not the same as the law of England so far as the legal propositions above enunciated are concerned (although non-consummation of the marriage is not a ground of nullity in the law of Scotland), and, in my opinion, these propositions are equally valid in our law. To me they seem to consist with the traditional Scottish views on adultery which I have canvassed supra. Just as artificial insemination extracts procreation entirely from the nexus of human relationships in or outside of marriage, so does the extraction of the nexus of human relationship from the act of procreation remove artificial insemination from the classification of sexual intercourse. If my views be correct, then it follows logically that artificial insemination by a donor without the consent of the husband is not adultery as the law interprets that term. The only case cited to me wherein a contrary view was reached was the un-reported American case of Doornbos v. Doornbos, which was a declaratory form of action unknown to our procedure. Not having had the benefit of the judgment on which the decision was based, I cannot comment on it, but, for the reasons which I have given, I must express the view that the decision is one which cannot be followed or supported in our law. It is perhaps not inappropriate, however, to consider the implications of the contrary view. If artificial insemination by a donor without the husband's consent is to be deemed adultery, the first question which seems to call for a decision is whether the donor whose seed has been used has himself been guilty of adultery. If the answer is in the affirmative, the further question arises, at what point of time has he done so? If it be at the point when the seed is extracted from his body, certain interesting considerations would arise. I gather that seed so obtained can be retained for a considerable time before being used, and in some cases it may not be used at all. If the donor's seed is taken merely to lie in retentis, it surely cannot be adultery if that seed is never used. Thus, if his adultery is to be deemed to take place at the time of the parting with the seed, it can only be an adultery subject to defeasance in the event of the seed not being used. Such a statement need only be stated for its absurdity to be manifested. If, on the other hand, his adultery is deemed to take place when the seed is injected into the woman's ovum, this latter act may take place after his death, and in that case the woman's conduct would constitute not only adultery but necrophilism. Such a proposition seems to me to be equally absurd. The third alternative is that the whole process-should be regarded as an act of adultery, but as this might in certain cases result in the act covering a period of say two years, and be committed partly during the lifetime and partly after the death of the donor, I cannot distinguish between the absurdity of such a proposition and the absurdity of the other alternatives. Senior counsel for the pursuer appreciated the illogicality and absurdity of these consequences of the proposition that the donor had committed adultery, and accepted that he had not. This then forced him to argue that the wife could commit adultery by herself. One need not consider the interesting point whether the administrator could be said to commit adultery, because the administrator might be a woman or the seed might be self-injected by the wife herself operating the syringe. The idea that a woman is committing adultery when alone in the privacy of her bedroom she injects into her ovum by means of a syringe the seed of a man she does not know and has never seen is one which I am afraid I cannot accept. Unilateral adultery is possible, as in the case of a married man who ravishes a woman not his wife, but self-adultery is a conception as yet unknown to the law. The argument of pursuer's counsel was that adultery meant the introduction of a foreign element into the marital relationship. That, however, seems to me to beg the question, because what has still to be determined is what is the foreign element? For the reasons which I have already explained, that foreign element is the physical contact with an alien and unlawful sexual organ, and without that element there cannot be what the law regards as adultery. The introduction of a spurious element into the family, with all its consequences, may be the result of such conduct, but is not a necessary result, and it is by the means and not by the result that this issue is to be judged. If artificial insemination by a donor were to be regarded as adultery, then I opine the view that it would be adultery whether the seed germinated or not, and yet in the latter case there would be no resultant adulteration of the strain. At the root of the argument for the pursuer was the proposition that impregnation is at the basis of adultery, and it was argued that the view of the English Judges that there must be penetration indicated that there must be the possibility of insemination. Whatever the moral and ethical aspects of that argument may be, the Courts have now accepted that adultery can take place when the possibility of insemination has been excluded either by natural causes or artificial expedients, and so that argument must fail.

It accordingly follows, in my opinion, that artificial insemination by a donor does not constitute adultery according to our law. It is no part of my task in this case to animadvert on the moral, ethical and social aspects of the practice. That it constitutes a grievous marital offence against a non-consenting husband I have no doubt. The law, however, lays down certain grounds upon which divorce may be obtained, one of which is adultery, and if artificial insemination by a donor is not adultery in law, then proof of such insemination may rebut the inference which might otherwise be inevitably drawn from the birth of a child following a long period of non-access. In such circumstances the onus would undoubtedly be upon the defender to establish that the child was so conceived, and failure to do so would result in the primary Wheatley inference of adultery being applied. If it be that science has created a casus improvisus, the remedy is not to be found in fitting such a case into one of the existing grounds of divorce on arguments which cannot logically or physiologically be supported.

I accordingly find that the pursuer's plea to the relevancy of the defences based on the general argument is ill-founded, but I shall not repel it in hoc statu, since it must be kept open in view of the admitted lack of specification in the defender's pleadings. I shall accordingly continue the cause to enable the defender, if so advised, to table such amendments as she thinks fit.