specially concurring:
I am in agreement with the majority opinion with the exception of part III thereof. The majority apparently views the issue to be whether the General Assembly intended section 19-4-106(2), 8B C.R.S. (1988 Supp.),1 to apply to a donor who agrees with the donee that, contrary to the statute’s provisions, the donor should be treated as the child’s father. That view, however, suggests that the meaning of statutory terms can vary depending on pri*36vate agreements reached by some parties. Surely legislative intent cannot vary from case to case depending on the frame of mind of persons governed by that intent.
For similar reasons, I cannot accept the majority’s suggestion that the drafters of the Uniform Parentage Act (the model UPA) envisioned that in one set of circumstances — when the donee is married and her husband consents in writing to the artificial insemination — an agreement by the parties would not be a “relevant consideration” in ascertaining the meaning of the statute. Slip op. at 33. The corollary of that proposition must be that in some other circumstances an agreement by the parties would be a “relevant consideration” in ascertaining the meaning of the statute. If the meaning of a statute in some but not all of its applications must be determined by reference to the intent of persons governed thereunder, the statute may not meet equal protection or due process standards.
The issue raised by J.R. can be viewed as a more generic question: whether parties whose rights and obligations are governed by a statute may waive those rights or obligations by agreement'.2 E.C.’s position seems to be that the agreement asserted by J.R. is unenforceable because any such agreement is contrary to the public policy established by section 19-4-106(2). I believe the trial court erred in determining that by its terms section 19-4-106(2) barred J.R. from asserting any parental rights to R.C. because in my view the statute is inapplicable to the circumstances of this ease.
I find no ambiguity in the language of section 19-4-106(2): it bars any non-husband donor, known or unknown, from asserting any right of biological fatherhood to a child born by the donee, whether the donee is married or unmarried. However, I believe subsection (2) must be read together with that provision of subsection (1) expressly requiring that the artificial insemination process governed by statute be committed to the supervision of a licensed physician. If the process here was not supervised by a physician, the statute does not apply and E.C. may not rely upon its terms to bar J.R. from establishing that the parties reached an agreement concerning his parental rights.
The initial draft of the model UPA did not contain a provision requiring physician supervision of the artificial insemination process. H. Krause, Illegitimacy: Law and Social Policy 240, 243 (1971). However, the drafters ultimately chose to condition the model UPA’s applicability to situations supervised by licensed physicians, no doubt in consideration of the inherent risks to all participants in the process, including the child. See Unif.Parentage Act § 5 comment, 9A U.L.A. 593 (1979), citing Wadlington, Artificial Insemination: The Dangers of a Poorly Kept Secret, 64 Nw.U.L.Rev. 777, 783 (1973).
Because the act of artificial insemination itself does not require medical expertise, it can reasonably be concluded that the requirement of physician supervision reflects a concern for the health of the donee and of the child and a desire to reduce the risks of genetic deficiencies in children born as a result of artificial insemination. See Jhordan C. v. Mary K, 179 Cal.App.3d 386, 224 Cal.Rptr. 530 (1986). See also Vetri, Reproductive Technologies and U.S. Law, 37 Int’l & Comp.L.Q. 508, 518 (1988). Requiring physicians involved in this process to determine the blood characteristics of the donor and donee is not inconsistent with a physician’s professional responsibilities in any parenting context. See Id. Statutes in Idaho, Ohio and Oregon establish minimum screening standards. Idaho Code §§ 39-5404 & 39-5408 (1985 & 1988 Supp.); Ohio Rev.Code Ann. § 311.35(2) (Anderson 1989); Or.Rev.Stat. § 677.370 (1987). See Andrews, Legal Aspects of Assisted Reproduction, 54 Annals N.Y.Acad. of Sciences 668, 671 (1988). In addition, a physician should no doubt conduct a physical examination of both donor and donee to ascertain whether medical harm will result to the *37donee from the artificial insemination process and to protect the child from hereditary disease.3 Hirsh & Palm, Legal Implications of Artificial Conception, 29 Medical Trial Tech.Q. 404, 407-08 (1982).
The General Assembly has not defined the scope of “supervision” required of the licensed physician whose participation in the artificial insemination process is a prerequisite for application of the provisions of section 19-4-106(1) and (2). A standard of reasonable professional conduct under all the circumstances may readily be implied, however. This is the standard of reasonable care by which physicians’ professional conduct toward their patients has traditionally been measured at common law. Such conduct at a minimum must include determining the blood characteristics of the donor and donee and ascertaining whether the artificial insemination process might endanger the health of the do-nee or the child.
Although it appears that the physician here was not involved in supervising the artificial insemination process as contemplated by section 19-4-106(2), the trial court has not considered this question. In view of this circumstance, I believe the case should be remanded to the trial court for a determination of whether this particular process of artificial insemination was carried out under the supervision of a licensed physician. If it was not, the statute is inapplicable. If it was, the trial court must determine whether the parties reached an agreement that in effect insulated their conduct from the terms of the statute and, if so, whether such an agreement is enforceable.
For the foregoing reasons, I specially concur in the result reached in part III of the majority opinion.
. The statute in effect at the time this action was filed was codified as § 19-6-106, 8B C.R.S. (1986). That statute was repealed and reenacted in 1987 and is now codified at § 19-4-106, 8B C.R.S. (1988 Supp.).
. At least two states have adopted artificial insemination legislation specifically addressing issues arising from agreements between donors and donees. See NJ.Stat.Ann. § 9:17-44(b) (West 1989); Wash.Rev.Code Ann. § 26:26.050(2) (1987).
. According to one commentator, guidelines for screening donor semen have been promulgated by the American Fertility Society, the American Association of Tissue Banks and the Council of Ethical & Judicial Affairs of the American Medical Association. The author summarizes the guidelines suggested by the American Fertility Society as follows:
[The guidelines] recommend extensive infectious disease testing. They also recommend rejecting prospective donors or surrogates with a family history of nontrivial malformation, nontrivial Mendelian disorders, or a chromosomal rearrangement (unless the donor or surrogate has a normal karyotype). The donor or surrogate should not have (or have had) any disease with a known or reliably indicated major genetic component, such as asthma, juvenile diabetes mellitus, epileptic disorder, hypertension, a psychosis, rheumatoid arthritis, or a severe refractive disorder. The guidelines recommend screening donors for autosomal recessive disorders known to be prevalent in their ethnic group, and rejecting carriers. In addition to these definite reasons for rejection, there are certain conditions in relatives that should be considered as reasons for rejection (major psychoses, epileptic disorders, juvenile diabetes mellitus, and early coronary disease, mental retardation, neurologic disorders, unexplained deaths under age thirty, or significant congenital defects). The AFS also suggests that the Tay-Sachs trait should be screened for in Jewish donors or surrogates and sickle cell trait should be screened for in black donors or surrogates.
Andrews, Legal Aspects of Assisted Reproduction, 54 Annals N.Y.Acad. of Sciences 668, 672 (1988).