A Hitchhiker's Guide to ART: Implementing Self-Governed Personally Responsible Decision-Making in the Context of Artificial Reproductive Technology

• Author: Lynne Marie Kohm
• Position: Professor of Family Law, Regent University School of Law, JD Syracuse University; BA Albany University
• Pages: 413-442

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A HITCHHIKER’S GUIDE TO ART: IMPLEMENTING SELF-GOVERNED PERSONALLY RESPONSIBLE DECISION-MAKING IN THE CONTEXT OF ARTIFICIAL

REPRODUCTIVE TECHNOLOGY

LYNNE MARIE KOHM^*

I. INTRODUCTION1

Hitching a ride on an artificial reproductive technology vehicle²to

undergo a rendition of alien or reproductive technology³propels a couple into a place of moral dilemma they never imagined.⁴There, they must find the ―answer to the Ultimate Question of Life, the Universe, and Everything.‖⁵That is the story of Ohio residents Mr. and Mrs. Sean Savage and their family.⁶

Copyright © 2011, Lynne Marie Kohm.

* John Brown McCarty Professor of Family Law, Regent University School of Law, JD Syracuse University; BA Albany University. It was an honor to present parts of this article during the Sixth Annual Wells Conference on Adoption Law at Capital University sponsored by the National Center for Adoption Law and Policy. It is dedicated to the most difficult and excellent choices made by the Savage family, and to all the individuals and families that place the best interests of children above their own. I wish also to thank Linh Flores for her excellent research on this project.

¹This introduction is an adaption of the story in DOUGLAS ADAMS, THE HITCHHIKER‘S

GUIDE TO THE GALAXY (Harmony Books ed., 1979). In the novel‘s early chapters, the Earthling Arthur Dent watches local officials raze his house to build a highway bypass, discovers that his best friend is from another planet, and escapes with his friend just as the Earth is destroyed by hitching a ride aboard the very alien ship that is doing unto Earth as the town council had just undone to Arthur‘s house. Throughout the novel, the titular Guide helps Arthur orient himself in his vertiginous and occasionally terrifying new surroundings.

²See id. at 34. It might be a starship full of officious otherworldly bureaucrats or an ART clinic.

³See id. at 64. Tortuously trite Vogon poetry or ovarian hyper-stimulation, take your pick.

⁴See id. at 114. Magrathea, the galaxy‘s least-welcoming planet, might be less intimidating.

⁵See id. at 172. Forty-two is the number from which all meaning can be derived; if only the answer was as simple as forty-two. See id. at 180.

⁶Stephanie Smith, Fertility Clinic to Couple: You Got the Wrong Embryos, CNN.COM (Sept. 22, 2009), http://articles.cnn.com/2009-09-22/health/wrong.embryo.family_1_ fertility-clinic-embryos-savages?_s=PM:HEALTH (―In a tragic mix-up, the Savages say the

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Sean and Carolyn Savage were pursuing artificial reproductive techniques (ART) when the clinic informed them that, due to clinic error, Carolyn was pregnant with another family‘s child.⁷Shannon and Paul Morell are the genetic parents of the baby Carolyn Savage carried.⁸There was no hitchhiking away from this dilemma. Instead, each individual⁹and each family¹⁰was forced to make incredibly difficult choices.¹¹In the end, each decision was not based on any state statutory code, case law, or right to damages relating to the cruel dilemma. Rather, the Savages and the Morells made decisions from self-governance and personal responsibility that placed the life of an unborn child above their own preferences.¹²

fertility clinic where Carolyn underwent in vitro fertilization implanted another couple‘s embryos into Carolyn‘s uterus. In essence, she had become an unwitting surrogate for another family.‖).

⁷Id.; Mike Celizic, She Was Implanted with the Wrong Embryo: Plans to Say „Hello, and Goodbye’ when She Delivers the Baby Soon, TODAYSHOW.COM (Sept. 21, 2009, 9:42

AM), http://today.msnbc.msn.com/id/32950836 [hereinafter Celizic, Hello and Goodbye]; see also J.C. Reindl, Happy News Turns Horrifying for Sylvania Township Couple, TOLEDO

BLADE (Sept. 22, 2009), http://www.toledoblade.com/apps/pbcs.dll/article?AID=/200909 22/NEWS16/909220358.

⁸Mike Celizic, Genetic Parents of Embryo Felt „Powerless:’ Mix-Up Is a Terrible Thing that Has Happened to Two Good Families, TODAYSHOW.COM (Sept. 23, 2009, 9:00

AM), http://today.msnbc.msn.com/id/32980984 [hereinafter Celizic, Genetic Parents].

⁹Carolyn Savage had a legal right to choose an abortion. See Roe v. Wade, 410 U.S. 113, 166 (1973). Sean Savage had a right to disavow the child his wife carried, because it was not his child, or he could have exercised his legal right to fight for custody of the child. See OHIO REV. CODE ANN. § 3111.03 (West 2005 & Supp. 2010). Shannon Morell had a right to sue under the contract with the clinic. See Johnson v. Calvert, 851 P.2d 776, 784 (Cal. 1993). But, Shannon had no right to her genetic child as it was carried in Carolyn‘s womb. See In re Baby M., 537 A.2d 1227, 1264 (N.J. 1988) (holding that there is no prohibition against a surrogate mother changing her mind and asserting her parental rights), superseded by statute, N.J. STAT. ANN. § 9:3-46. Paul Morell also could have asserted his right to his own genetic offspring, asked for judicial declaration of Carolyn Savage as his child‘s surrogate, and been joined in the action by his wife. See Johnson, 851 P.2d at 784.

¹⁰Within each family, the marriages were handling the stress of the situation in ways none of us can ever adequately understand. See Celizic, Genetic Parents, supra note 8; Celizic, Hello and Goodbye, supra note 7; Smith, supra note 6.

¹¹Couples Make Best of Fertility Clinic’s Error, L.A. TIMES, Sept. 27, 2009, at A11

(―Paul and Shannon Morell of suburban Detroit said in a statement that they would be ‗eternally grateful‘ to Carolyn Savage, of Sylvania, Ohio, for her decision to give birth to their child despite the clinic‘s mistake.‖).

¹²See id.

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These families are living paradigms of personal autonomy sacrificed for a child‘s best interests.¹³This story is one example of the profound impact artificial reproduction is having on families.¹⁴Artificial reproductive techniques have also had an incredible impact on many other families that have not incurred such devastating news from their ART experience. Those effects range from continuing disappointment to being blessed with children, with those children in turn being blessed with life and with families who love and treasure them.¹⁵

The impact that artificial reproduction has had on families is difficult to overstate. The ART process impacts individuals, creates new lives, establishes and constructs families, tests marriages,¹⁶and sometimes causes divorce.¹⁷Also, children who are the result of the ART process

The two couples knew nothing about each other. Shannon Morell feared that the pregnant woman would choose abortion, ending their chance to give their 2-year-old twin girls a sibling.

A few days passed before they learned that the Savages were not only willing to continue with the pregnancy but also to hand over the baby.

Id.

¹³See id. (stating that the baby boy was born in Toledo and weighed five pounds, three ounces, and was eighteen inches long). ―The Savages asked for privacy in the days ahead saying, ‗Our family is going through a very difficult time‘ . . . . The Savages said in an interview with The Associated Press on Wednesday they never considered terminating the pregnancy or trying to fight for custody.‖ Ohio Woman Implanted with Michigan Woman’s Embryo Gives Birth to Healthy Boy, Will Give Him Up, WASHINTGONEXAMINER.COM (Sept.

26, 2009, 12:20 AM), http://www.washington examiner.com/nation/ap/61588447.html; see also Carolyn and Sean Savage Gave Up Their Baby Boy Without a Fight. Would You?, CONUNDRUMLAND (Sept. 26, 2009), http://www.whatsyourconundrum.com/parenting/

Carolyn-and-sean-savage-gave-up-their-baby-boy-without-a-fight-would-you.

¹⁴See Ohio Woman Implanted, supra note 13 (noting that the family was going through a very difficult time).

¹⁵See Janet I. Tu, How Some Couples’ Hopes for a Child Find New Life, SEATTLE

TIMES, Nov. 20, 2008, at A10.

¹⁶Shirley L. Zimmerman, Alternatives in Human Reproduction for Involuntary Childless Couples, 31 FAM. REL. 233, 240 (1982).

¹⁷See Anne Martin Matthews & Ralph Matthews, Beyond the Mechanics of Infertility: Perspectives on the Social Psychology of Infertility and Involuntary Childlessness, 35 FAM.

REL. 479, 483 (1986).

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would not otherwise exist, and thus, are greatly impacted.¹⁸Lastly, ART also impacts the child‘s siblings, friends, future spouses, and future children. For each of these sets of people, there are personal, emotional, social, financial, and physical concerns.¹⁹Yes, artificial reproduction has indeed impacted families.

Artificial reproduction has also impacted family law. The magnitude of the legal scenarios is nearly as vast in scope as one‘s imagination, even an imagination like Douglas Adams‘.²⁰Some states have a variety of regulations on ART,²¹while others have none.²²Any experienced lawyer knows that when a client finally includes an attorney after reaching the stage of desperation in any legal matter, the law and all its incidents are not easily sorted out thereafter.²³

This article presents the three major areas of concern regarding the impact of ART on families—marriage, divorce, and children—and argues for a self-governed personally responsible decision-making paradigm that thrives in the face of minimal state regulation in every aspect of family law related to artificial reproduction. Part II considers the impact ART has had on marriage. It sets out the issues surrounding marital status and procreation generally and how ART has contributed to confusion regarding the role of procreation in society and procreation‘s connection to marriage.

¹⁸See Helen M. Alvaré, The Case for Regulating Collaborative Reproduction: A Children’s Rights Perspective, 40 HARV. J. ON...