Genes, parents, and assisted reproductive technologies: arts, mistakes, sex, race, & law.

• Author: Bender, Leslie

1. INTRODUCTION

   A true story: two infertile couples, Donna and Richard Fasano of Staten Island, New York, (1) and Deborah Perry-Rogers and Robert Rogers of Teaneck, New Jersey, (2) went to the In Vitro Fertility Center of New York, an in vitro fertilization [hereinafter IVF] clinic in Manhattan, for treatment on the same day in April 1998. Both couples were undergoing IVF procedures that created pre-embryos (3) ("test tube babies") with hopes of giving birth to their own babies. Due to a clinical error that caused a pre-embryo mix-up that day, (4) Donna Fasano was mistakenly impregnated with as many as six of the Rogerses' pre-embryos along with at least one of hers and her husband's pre-embroys. (5) Deborah Perry-Rogers was also implanted with pre-embryos on April 24, 1998, but all those pre-embryos were hers and her husband's. (6) Unfortunately, Perry-Rogers's pre-embryos did not implant in her womb. (7) A few weeks later, on May 28, 1998, after Donna Fasano knew she was pregnant with twins, the clinic notified both couple s of the mistake. The Rogerses attempted to learn who had their pre-embryos, but were unable to find out. The Fasanos, on the other hand, did not take any affirmative steps to identify either of their embryos' genetic parents during Mrs. Fasano's pregnancy or for several months after the children's birth. (8)

   On December 29, 1998, Mrs. Fasano gave birth to two boys, one of whom is European-American like the Fasano couple and the other who is African-American, like the Rogerses. The Fasanos were content to raise both sons, whom they named Vincent and Joseph. However, when the Rogerses learned about the Fasanos' birth by "luck," (9) they insisted on having genetic tests done. Those tests revealed that the African-American boy was their genetic child. (10) The Rogerses immediately sued for a declaration of parentage and custody. They also renamed the boy Akeil Richard Rogers. When genetic tests revealed that Joseph/Akeil (11) was the genetic child of the Rogerses, the Fasanos agreed to relinquish custody to the Rogerses, if the Rogerses would execute a written agreement granting them liberal visitation. The agreement, signed on April 29, 1999, gave the Rogerses custody, but contained a carefully delineated visitation schedule and provided for $200,000 in liquidated damages if the Rogerses violated the visitation agre ement. Pursuant to that agreement, on May 5, 1999, the Fasanos signed affidavits acknowledging that the Rogerses were Joseph/Akeil's genetic parents, consenting to the entry of a final order of custody in the Rogerses' favor, and agreeing to change Joseph/Akeil's birth certificate. On May 10, 1999, when the baby was four-and-a-half months old, the Fasanos turned the infant over to the Rogerses. The next day the Rogerses complied with the agreement by discontinuing with prejudice the action against the Fasanos (although they retained their action against the IVF clinic).

   Had the story ended here, we probably could have agreed that the best was made of a bad situation. However, two weeks later the Rogerses were back in court seeking a resolution that was different from the one to which the parties had agreed. On May 25, 1999, the Rogerses sued the Fasanos by petitioning the court for a declaratory judgment about Akeil/Joseph's parentage, seeking sole and exclusive custody, and making no mention of the visitation agreement that was signed. After several stages of legal wrangling and a full evidentiary hearing, the court issued a January 14, 2000 order allowing the Fasanos substantial visitation. It is from this order that the Rogerses appealed, seeking to void the visitation agreement entirely. The appeals court rendered the startling decision that the Fasanos had no standing to claim visitation rights to Joseph/Akeil; they had no parental right to even ask the court to enforce the visitation agreement. The troubling resolution of this case by an intermediate appellate court o f New York prompted my reflections in this essay.

   This essay explores some of the legal policy questions that arise when strangers' lives become inextricably linked because of assisted reproductive technologies (ARTs) (12) gone awry. At the intersection of law, medicine, technology, and ethics, cases arising out of mistakes with ARTs reveal more than just the frights of failed technologies and human error. Cases like that of the Rogerses against the Fasanos unveil race-biased and sex-biased assumptions that skew our legal analyses. At the heart of the problem are the assumptions about the role that genetics and genetic relationships should play in defining legal parenthood. The tendency of courts to default to a "genetic essentialism" (13) when trying to unravel the complicated messes of maternity created by mistakes in ARTs is alarming.

   Genetic essentialism asserts that our genes and our DNA are the essence, the core, the most important constituent part of who we are as human beings; therefore genetics should overpower any other factor when defining biological parenthood. Genetic essentialism reduces human beings to the contents of our cells. It ignores the ways our cells and environments interrelate, the ways our physiological system functions as a whole organism, and the ways our minds and hearts affect our being. Additionally, genetic essentialism renders all our ways of nurturing and being nurtured by one another for naught.

   My aim in writing this essay is to challenge courts, lawyers, bioethicists, and legal theorists to reject genetics as the ultimate tie-breaker in contests over legal maternity and legal parenthood. I argue that a genetics-based or genetic essentialist approach is sex-biased, because it discounts entirely the relational, nurturing, biological contributions to reproduction that only women make--gestation and birth. I also argue that a genetics-based approach can be race-biased because it relies only on physical/biological signifiers of race, rather than on understandings of the compound socio-political, historical, legal, cultural, and economic meanings of race.

   When an ART mistake involves racial differences as the Perry-Rogers v. Fasano case does, a genetic essentialist approach or a simplistic race-matching approach to parenthood dangerously reduces the complexity of the race issues to seemingly unadorned biological facts. If genetic essentialism did not lead the court to biological notions of race, then the court employed hidden race-biased assumptions that must be brought to light and challenged. None of this bodes well for an appropriate legal analysis of parenthood for victims of ART mistakes, and yet an appropriate legal analysis is more ominously needed every day.

   Desperation for children of their own led the Fasanos and the Rogerses to use assisted reproductive technologies to achieve their desired ends. ARTs, when successful, have enormous power to help couples create new life, but ARTs can exaggerate the pains of infertility when they are unsuccessful. (14) As with any other humanly designed and implemented technological fix, ARTs have additional potential consequences: the problems associated with negligent or reckless errors, or even with intentional abuses. The magnitude of harm from this third consequence cannot be overstated. (15)

   The Fasano and the Rogers families are victims of inexcusable negligence by an ART provider. Were this essay about the medical malpractice lawsuit against the IVF clinic, proof of negligence would be easy and the only challenging issue would be how to assess the appropriate damages. But, this essay is about the child, who his family is, and the assumptions that courts should or should not use when resolving these complicated messes. Who should have custody of Joseph/Akeil and why? Should visitation be granted to the other couple? Lower and intermediate appellate New York courts were asked and already answered these questions in Perry-Rogers v. Fasano. (16) Leave for appeal to New York's highest court, the Court of Appeals, was filed in December 2000 and denied in May 2001 The New York Court of Appeals' failure to take up this important case and to right the terrible wrong done by the lower courts does not silence the issues presented.

   This essay begins by situating the problem of ART mistakes within the problems that law faces in the bioethics arena, and then by specifically critiquing the reasoning and approach in the October 2000 decision by the New York Supreme Court, Appellate Division, First Department in the Perry-Rogers v. Fasano case. My critique illustrates that to judge this kind of dispute appropriately, deeper issues about the flawed assumptions underlying the court's legal analysis must be addressed. Similar kinds of cases raising questions about genes, parenthood, and assisted reproductive technologies will inevitably reach other states' highest courts, even if the New York Court of Appeals avoided the issue this time around. My hope is to provide some insights that will enable courts and lawyers involved in cases of ART mistakes to understand the unintended biases that distort this decision-making process.

2. BIOETHICAL DILEMMAS, ARTS, AND LAW

   For the last two decades, our judicial system has trailed woefully behind the complex bioethical dilemmas that accompany the rapid advances in biotechnology, biomedicine, and assisted reproductive technologies. For a bioethics and law professor, the weekly news is an embarrassment of riches: conjoined twins for whom separation surgery necessarily results in the death of one twin; (18) "designer babies" whose embryos were genetically tested and implanted to be tissue matches for living siblings; (19) infertility clinic directors stealing or misplacing frozen embryos; (20) custody battles between ex-partners over stored frozen embryos; (21) posthumous reproduction; (22) infertility treatment-induced multiple births; (23) defective, contaminated, or mistakenly donated gametes...