To Err Is Human ART Mix-ups: A Labor-Based, Relational Proposal

Author:Leslie Bender
Position:Board of Advisors Professor of Law, Syracuse University College of Law

I. Art Mistake And Mix-Up Stories II. Proposed Model Act´S Provisions Regarding Parentage III. Statutory And Common Law Inadequacy In Art Mix-Up Cases A. Contract 1. In case I am mistakenly given the wrong gamete or wrong embryo: 2. In case my gamete or embryo is mistakenly given to someone else: B. Intent Standard C. Statutory Uniform Parentage Act (UPA) Provisions D. Genetics IV. Proposed... (see full summary)


    2006, Leslie Bender. All rights reserved.

    Leslie Bender,Board of Advisors Professor of Law, Syracuse University College of Law. I am grateful for the hard work and thoughtfulness of the Journal student organizers of this conference, Professor Shelly Kurtz and his students who drafted the Model Act, and the other conference participants. Students in my Spring 2005 Bioethics and Law class at Syracuse, attendees at my workshop at the 2005 National Women Law Students Association conference, and attendees at my Syracuse University Women¥s Studies Program Faculty Speaker¥s Series presentation helped me refine my thinking on some of these issues. I am lucky to have one of the country¥s top experts in family and children¥s law as my colleague and dear friend. Sarah Ramsey unselfishly read through this Article for me on little notice and gave me valuable feedback. My summer 2005 research assistant, Kenneth R. Miller, Class of 2006, helped me clean up this article as an added task to his already full summer schedule. My 2005-06 research assistant, Liza Camellerie, Class of 2006, also lent her talents to editing this article. Dean Hannah Arterian and the Syracuse University College of Law supported this research with a generous summer grant.I dedicate my continued writing on the children of ART mix-ups to my parents and to "all my children," however they came to share their lives with mine: Benjamin Saller, Jola Hyjek, Todd England Nicodemus, Rachael Saller Bender, Jonathan Farmer, Nana Sang Bender, and Alida Sang Bender. I am happy to say, neither I, nor any of my children, were the result of a reproductive mixup, though my children came to my family by various routes. My relationships with each and all of them inspire me to think about parentage issues differently than I would without having them in my life. Despite their vital contributions to my understandings, I freely admit that many of them may not agree with my conclusions in this article.

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Any human endeavor is prey to human error. The consequences of human error in the area of assisted reproductive technologies are magnified by our playing in the field of creation of new human lives and lifelong relationships. Stories of assisted reproductive technology (ART) mistakes continue to fascinate the media and popular culture, pain their multiple victims, and haunt the nightmares of ART participants, past, present, and future. Though there are many kinds of mistakes that can arise in these complex processes, this Article focuses on mistakes or mix-ups involving the accidental use of incorrect gametes (sperm, ova, and embryos) during in vitro fertilization (IVF) procedures.1

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Susan Buchweitz was accidentally given Robert and Denise B¥s embryos during IVF.2 Donna Fasano was mistakenly given the Rogerses¥ embryos in addition to her own during IVF.3 In other words, I am focusing on those mistakes where ova are mixed with sperm from the wrong man/donor, the wrong donated ova are mixed with the right sperm, or where one couple¥s embryos are transferred or implanted into a wrong woman¥s womb. These mistakes lead to contests over who the parents are or should be, rather than, or in addition to, tort lawsuits for damages. Though these mistakes may provide substantial recovery against the negligent fertility clinic and fertility doctors, those tort lawsuits are not the subject here. This analysis does not include cases where there is criminal conduct, such as when fertility doctor Cecil Jacobson used his own sperm to inseminate 120 women,4 or when doctors at University of California, Irvine sold eggs and embryos without the progenitors¥ knowledge to people in other countries.5

Nor does it include mistakes about the wrong sperm where there is no contest over parentage6 or when fertility clinics misrepresent their services and fail to adequately control gametes or embryos.7 Here I focus on which relationships between the ART-conceived child and the hopeful adults who engaged in the ART process will be recognized in law as parent-child relationships.

Of all the IVF procedures that occur everywhere each year,8 very few Page 445 result in the kinds of horrific mistakes I discuss here.9 However, because of the generations-long consequences these mistakes cause, they could, without careful thinking, end up redefining families in ways not rooted in choice, but by happenstance, and sometimes even "force." Our legal system must find appropriate and just ways to resolve the disputes that arise from these mix-ups. The solutions that the law applies must not unwittingly incorporate assumptions or hidden biases that do not inure to the benefit of the children and skew the resolutions in unjust, or even unpredictable, ways for the prospective parents. ART-related mix-ups or mistakes ultimately ask us to consider what the relevant prerequisite(s) for assigning legally recognized parenthood are and what they should be-genetic contribution of gametes, gestational contribution, consent and contract, intent to create a child, intent to rear a child as its parent, existing or pre-existing relationships with the baby/child, the labor of rearing, the parents¥ needs, the child¥s best interests, social and emotional parenting, economic support, legal adoption, or something else. They require us to examine this question from a justice, equality, relational, and humanist perspective. They also ask us to examine the roles race and sex biases (and even economic privilege) play in distorting our legal conclusions about who is a parent.

I begin by telling some of the tales of woe that have occurred in this subcategory of ART mistakes involving gamete or embryo mix-ups. In Part II I look at the proposed ART statute created by a group of University of Iowa College of Law students for a class.10 For those readers not particularly interested in an analysis of the model statute, that section can be skipped without consequences to my argument. Part III briefly analyzes various courts¥ approaches to the roles of contract, intention, the Uniform Parentage Act and other statutes, and genetics in assigning parenthood. Part III focuses on recent cases only, in part because of the ever-evolving nature of parentage analysis in ART cases by courts. While my core arguments are addressed to ART mix-ups, I test the application of reasoning from other recent ART cases on surrogacy (collaborative mothering), frozen embryos, assisted insemination, paternity presumptions, and child support rulings.

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Hopefully these analogies do not lead us too far astray, because ultimately ART mix-ups are sui generis. If I am successful, my analysis will discredit each of the approaches that courts and commentators have employed and plant the seeds from which I grow a "labor-based, relational" theory of parental rights and responsibilities for mix-up cases in Part IV. This Article does not purport to be a comprehensive analysis of parentage cases, theories, and articles, but rather it is part of a developing argument for choosing an alternative approach to resolving parentage disputes in cases of ART mix-ups.

I Art Mistake And Mix-Up Stories

I offer this quick listing of reported ART mix-ups primarily to illustrate the range of problems that arise and the increasingly frequent rate at which these errors are reported.11 Many of these cases, though clearly not all, are discovered because of mix-ups involving people of different races. When parents give birth to children of races different from their own or from the characteristics of the promised gamete donors, the evidence of the mix-up is frequently clearer at birth to the participants and the reproductive clinic and/or hospital staff than when all the parents and the child are of the same race. In other cases where race is not an issue, the mix-up may be discovered later because of the child¥s physical attributes, personality traits, talents, genetic diseases, blood type, or because the fertility clinic informs the parties of the error.

For purposes of convenience, and perhaps for the effect of the argument, I will refer to race in the cases below as black and white, even though many of the children may be biracial and should be understood as such.12 Culturally, in the United States at least, black and white have come Page 447 to represent polar opposites on the continuum of race. This is especially ironic since Professors E.J. Parra, Mark D. Shriver, and R.A. Kittles, among others, have shown that a large percentage of African-Americans, for example, have at least one "white" forebearer,13 and who knows how many whites have black ancestors?14 These mix-ups no doubt occur in other racial contexts, but I have not found any reported cases of Asian, Latino/a, or Indigenous peoples in these mix-ups. Ironically, all the cases are presented in black and white, even in 2005. I wish it would be that the answers were as legally and ethically "black and white," but instead we find ourselves enveloped in shades of gray, or more appropriately, pinks and browns.

Professor Cynthia Mabry reports the 1987 case of Julia Skolnick as the first known case of an ART mix-up.15 Ms. Skolnick, a white woman, wanted to achieve a pregnancy with her deceased husband¥s frozen sperm. When she gave birth, she had a "dark-skinned" (black?) child that was clearly the result of a sperm mix-up.

The first...

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