Some twenty-five years ago, two couples underwent IVF treatment at the same facility: Deborah Perry-Rogers and her husband and Donna Fasano and her husband. The Perry-Rogers are Black; the Fasanos are white. Mrs. Perry Rogers was led to believe her IVF failed. In December 1998, Donna Fasano gave birth to two children, one white and the other Black. Not disclosing this to the facility, she raised both boys as her own.
When the Perry-Rogers learned of the error six months later, they tried to get their biological son back. The Fasanos fought – bitterly -- to keep the son they had raised as their own. It took another six months before the Perry-Rogers obtained custody of their biological son (and two years of further legal wrangling before the Fasano’s visitation rights were terminated.)
The court weighed the genetic rights of the birth mother (an issue that arises during surrogacy cases) against the best interests of the child. As the court noted in Perry-Rogers v. Fasano:
“The gestational mother" may possess enforceable rights under the law, despite her being a "genetic stranger" to the child. Given the complex possibilities in these kind of circumstances, it is simply inappropriate to render any determination solely as a consequence of genetics.”
In the interim, you would have thought that IVF facilities would have taken steps to detect the situation earlier than a year after birth. But no. Almost two decades later, we find in the space of a few weeks reports that three babies have been switched, again resulting in gut-wrenching consequences and difficult legal decisions.
Because most discoveries happen when the child bears biological characteristics that differ from the birth mother and her sperm donor, the situation likely goes undiscovered where the child resembles the birth parents and occurs far more often than reported. No safeguards are in place to detect the problem- only diligent efforts by the biological parents turn up their lost treasure.
Last month, the New York Times reported on two couples parenting the biological offspring of the other. The discovery happened three months after birth, and while the two sets of parents were sympathetic to the plight of the other and willingly switched the infants, the psychological scars remained – but it was the parents and older siblings of the switched babies who suffered most; each sorry to relinquish a child with whom they had forged strong emotional bonds.
Perhaps the most horrific situation occurred in Israel, where there was only one baby in the lottery. Discovery of the mistake happened in utero, as the fetus underwent in utero tests for medical reasons. The problem was that it took three years to discover who the biological parents were!
During that time, the custodial parents and the child bonded. The hospital claimed it knew who the biological parents were and requested a court order compelling DNA testing. The problem was that the hospital was wrong -- and the suspected couple weren’t the parents. Reportedly, several other “barren” couples stepped up, arguing the baby was theirs until the search finally narrowed to a couple called A and B. Genetic tests confirmed their biological nexus when the child was a year old. It took another year, while the child remained with the gestational parents, for the case to work through the courts. Expert opinion centered not on the genetic connection, per se, but on the best interests of the child, a time-honored paradigm in these cases. But what constituted the best interests of the child – and who makes that decision? In this case, the court-ordered experts differed in what constituted the child’s best interests.
Again, we have an instance where the law hasn’t caught up with the science, and jurisprudential experts are at odds as to what paradigm should govern these complex cases. In all the cases (including Perry-Rogers v. Fasano), the courts, despite ordering DNA testing in each case, recognized that genetics is not solely determinative:
“Genetics is not an issue by itself. The issue is what genetics in fact entails…. [as] genetics carries social and psychological implications. ….” - Prof. Roy Gilbar and Dr. Sivan Tamir.
Multiple legal approaches might be available for judicial consideration but have been unarticulated and unsystematized. Recently, however, my friends and colleagues, Prof. Roy Gilbar and Dr. Sivan Tamir have clearly outlined the competing legal theories. They identify several considerations utilized by the Israeli court:
- An increasing acknowledgment of “the right of a child to know their authentic genetic identity,” a right championed in many European countries but not the US. The Israeli court felt the biological parents were in the best position to guarantee this right.
- “The best interests of the child” test (which is the guiding and paramount American paradigm), although how one makes that determination is entirely subjective. In the Israeli case, the social worker opined worker’s view was that the already-formed attachment between the baby and gestational mother took priority. The psychologist opined that future benefits would outweigh any concerns of damage from this past attachment.
- Included in the “best interest” test, the Israeli court considered the “genetic affinity” of the child to the biological parent, rejecting any “physical affinity” that might accrue to a gestating mother. (The claim of “genetic affinity” has been recognized, at least in Singapore, and affixes to the father as well, although thus far, it is not a viable claim in the US).
- The ability, at least in the short-term, to foster a positive relationship between the child and the gestational parent, which the court ruled was best carried out by the biological parent. The court in Perry-Rogers v. Fasano rejected this consideration.
- The clash between prioritizing psychological and genetic ties. In Israel, a very pro-natalist society that sanctifies “family,” the psychological bond between the child-rearing parent and child outweighs any genetic claim.
- “Feminist Moral Theory” and “ethics of care approach,” claim Sivan and Gilbar, are given short-shrift, as the genetic-affinity approach allows “science” to overrule the female experience of being pregnant, giving birth, and child-raising. (It is unclear how this concept would apply when two babies are switched and both mothers are pregnant.)
Most legal bioethicists would agree that genetics should not dictate an individual’s fate- but when implicated in cases where parental rights are also concerned, i.e., a dual controversy, we may require a different paradigm and outcome.
A few months ago, the Times reported that a New York woman who believed the two boys she birthed were her own. They weren’t. Heartbroken, the woman was forced to relinquish her babies to their respective genetic parents. Perhaps a simple solution would be to genetically test the babies before they leave the hospital. While not preventing all the angst for the mother, this solution might benefit the best interests of the child.
The Israeli case is of international concern as the facility where this occurred is heavily involved in international fertility tourism – advertising to an American audience, as well as securing unwanted American embryos. The extremely flawed record-keeping and failure to report adverse events, anecdotally prevalent at this hospital, would have had far more dire repercussions in the US. Given that laws and cultures of different countries would result in different outcomes and expectations, the biological parent's country of origin (and culture) might also be a consideration.
Sadly, even with the latest decision, the Israeli case is not resolved, as the custodial parents intend to appeal. One wonders if appealing is in the “best interest of the child,” as it might engender child-jockeying between the warring parents. Indeed, Solomon’s test may well be determined by the ability of the custodial parent to let go in the face of the court’s decision.
