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Wednesday, September 23, 2009

Who's Your Mommy?

Yesterday CNN posted a story about a couple who underwent IVF in order to conceive and mistakenly received another couple’s embryo.  The couple have decided to carry the pregnancy to term and give the child to its biological parents upon birth. As IVF becomes more and more common it is reasonable to assume more mix-ups like this may occur in the future and such pregnancies raise interesting legal question.  What would have happened if Carolyn Savage, the women given the wrong embryo, had decided she did not want to carry the baby?  Could she have been prevented from having an abortion by the biological parents?  Given the current case law on abortion, the answer is almost certainly no.  The legality of abortion is based on considerations of the pregnant woman’s rights. Specifically, her right to control over her body.  It is not based on the fact that she created the embryo.  With regard to abortion, one's biological relation to the embryo is given little weight.  A man has no right  to prevent a woman from obtaining an abortion even if he can prove he is the biological father.  Applying this rule to cases involving wrongly implanted embryos would seem to lead to the same results.  Whether to have an abortion or not is the pregnant woman’s choice and cannot be controlled by the non-pregnant biological parents.

However, what if Carolyn had decided to keep the baby?  The law on this is less clear.  On the one hand, there is a well established presumption that the children born during a marriage are the legal children of the married couple. Such cases typically involve two men claiming to be the father of a child, one man is the mother’s husband and the other claims he is the mother’s lover.  Under the law, if the husband claims paternity of the child, it is presumed he is the child’s father.  As a result, courts refuse to recognize any parental rights in the other man, even if he can prove he is the child’s biological father.  Applying the rule from such cases to the present would lend support for a pregnant woman’s decision the keep the child regardless of whether she is the biological mother or not.

On the other hand, it could be argued that Carolyn’s situation is closer to that of a surrogate; a woman who becomes pregnant with another couple’s biological child.  In those cases, when the surrogate has no biological relation to the child she carries courts have been fairly unanimous in their decisions that she may not keep the child.  At the same time, one could also liken this case to those involving egg donation in which case it is the woman who receives the egg and carries the baby who becomes the legal mother.

None of the above situations fit perfectly. Obviously, Carolyn had no intention of becoming a surrogate when she became pregnant but could one argue that she became a surrogate by choosing to continue with the pregnancy after learning that the baby was not her biological child?  Similarly, the biological mother had no intention of becoming an egg donor but how much should such initial intentions matter?  Is this difference a decisive one? Lastly, the reason given for recognizing the legal rights of husbands over biological fathers is typically described as protection of the family unit and a concern that allowing paternity claims by outside parties would threaten the marital family.  However, allowing a claim by the biological parents in a case like the Savages is arguably very different and does not involve the destabilizing claims of infidelity that courts have been traditionally worried about. Nevertheless, between the three lines of cases , I would be inclined to find the greatest similarities with the marital paternity cases.

The marital paternity cases demonstrate the strong protections afforded the marital family and that concerns for protecting the marital family outweigh the competing concerns of biological parenthood.  The Savages are clearly a marital family and allowing an outside party to claim parentage over a child they carried, gave birth to and claimed as their own could clearly have a destabilizing effect on their family.  In addition, the Savages were informed of the mistake almost immediately but what if more time had passed, what if she had already given birth?  There are good reasons to presume that the child of a marriage is the legal child of the couple and these reasons remain relevant in the context of IVF.

Posted by Marcia Zug on September 23, 2009 at 11:35 AM | Permalink


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A much-criticized (including by me) New York case, Perry-Rogers v. Fasano, involved similar facts and ruled that the baby belonged to the genetic parents. In that case there was another baby who was the genetic child of the woman who carried both. The babies were also different colors, which may have contributed to the court's inability to see a relationship based on the pregnancy--which, by the way, I would say is a biological relationship.

Posted by: Jennifer Hendricks | Sep 23, 2009 3:04:59 PM

There was a Law & Order: SVU episode on this exact topic on yesterday. (A re-run, no doubt.) Coincidence?

Posted by: dave hoffman | Sep 23, 2009 12:36:09 PM

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