ASRM Legally Speaking

California Court of Appeal Affirms “Split” Parentage in Embryo Mix-Up Case

Two mothers were one too many, and no father was one too few, for an appellate court asked to determine parentage of a child born through an embryo mix-up. A two-year-old child, known as “Daniel B.,” is the legal child of both the single woman who birthed him and the married genetic father whose embryo, created with his wife using donor egg, was mistakenly implanted. In affirming the lower court’s ruling (LS, Winter 2002), the court rejected both the single mother’s claim to sole parentage and the wife’s claim of motherhood. The facts and the court’s analysis raise significant issues about parentage in the face of such mix-ups.

The case involved a child, known as Daniel B., who was born after “Susan B.,” a single woman, went to the same clinic where a married couple, “Robert and Denise,” had created 13 embryos using Robert’s sperm and donor egg and gave birth to a daughter. The clinic mistakenly transferred three of the remaining embryos to Susan who intended to use donor sperm and donor egg, or in the court’s words, “… went to the same fertility clinic with the intent of purchasing genetic material from ‘two strangers.’” Susan purportedly did this so “there would be no paternity case against her, ever.” She gave birth to a son 10 days after the married couple’s daughter was born from the same embryos.

Ten months after the birth of the children, the clinic informed the married couple of the mistake, and they sought contact with Daniel. After Susan, who reportedly has and continues to agree to informal social contact, refused to relinquish custody, the couple filed this parentage action. Over Susan’s objection, the court allowed genetic testing. The court ruled that Robert could not be characterized as a “donor” within the meaning of California’s donor statute, because he did not intend to inseminate anyone other than his wife; that Susan’s claim of a right to sole parentage was better suited to the legislature; and that any constitutional claims on behalf of Daniel to a “stable, permanent placement” was an argument for a future potential custody claim by the father and his wife.

The court also rejected the wife’s arguments, ruling she lacked standing under California law because she has no biological relation to the child and rejected any application under these facts of that state’s statute that allowed “any interested person” to bring an action to determine a motherchild relationship. In doing so, the court quoted approvingly the lower court’s finding that, “there really is only one mother at this case at this point.” Any contractual rights Denise had were to the embryos, “but now what we’re talking about is a live person, not an embryo.” The court also refused to extend either of the landmark California cases of Johnson v. Calvert (LS 9/93 and LS 3 / 9 3) (intended genetic mother, not gestational carrier, found to be mother) or Jaycee B . v. Superior Court et al. (LS 12/97) (husband liable for child support as father of child born via donated egg and sperm to gestational carrier with his consent). The court noted that, if it were to “invoke the concept of intended mother here, which party would qualify? Both and neither. Susan intended to be the mother of the child created from an embryo implanted in her uterus that day at the clinic — but not that embryo ... Denise intended to be the mother of the child created from this very embryo — but not at that time, and she did not intend for another woman to bear the child.”

An appeal and further lower court hearings as to custody and visitation are anticipated.
Robert B. v. Susan B., No. H024926. Sixth Dist. (Cal.App.4th 6/13/03); Metropolitan News-Enterprise, June 17, 2003

Court Refuses to Recognize Genetic Mom Following Lesbian Partners’ Break-Up…

In a case that may have IVF programs reviewing their consent forms, a lesbian woman who supplied the eggs for her partner’s pregnancy has reportedly been denied legal parenthood following the couple’s split. Although the women had reportedly presented to the IVF program as a couple, they were apparently given standard donor egg consent forms. The form signed by the genetic mother reportedly characterized her as an egg donor and contained language acknowledging she was giving up any parental rights as a donor. Her partner became pregnant, delivered twin girls in 1995, and the women reportedly re a red them as a couple until they separated in 2001. The case was heard over a four-day period during the fall and winter of 2002, with a decision coming down recently.

According to published reports, the trial court rejected the genetic mother’s argument to recognize her as a legal parent, relying instead on her former partner’s having carried the children as a basis to recognize her as their birth mother and the consent form as a basis for the genetic mother having given up any parental rights she had as an egg donor. The genetic mother’s attorney had argued that the women had an agreement between themselves to create a child together and that the consent form was a contract of “adhesion,” i.e., one that the genetic mother was forced to sign if she wanted to undergo the IVF-ET treatment. The court found against the genetic mother, and her attorney plans an appeal.

The women’s respective medical conditions were reportedly the basis of their doctor’s recommending this course of treatment: one had fibroid tumors; the other had difficulties with egg quality. In at least a few states, including Massachusetts, some courts have been willing to legally recognize both women as mothers when a lesbian couple has created a child together in a similar manner, with one contributing the genetic component and the other the gestational component (LS 12/00).

With more and more nontraditional couples and single parents accessing ART treatments, programs may want to review their consent forms and procedures to ensure that they accurately and adequately address their patients’ situations. Programs may find it protective of both their patients and themselves to refer their patients to a knowledgeable attorney before proceeding with such medical treatment. Revisions, or at least personalized addendums to consent forms, may be in order to accurately reflect atypical circumstances. At a minimum, both patients and programs should be aware of the contents and any limitations of their standard documentation.
San Francisco Chronicle, P. Olsen, 6/22/03.

London Fertility Doctor Wins Libel Action and Apology …

A London fertility doctor has successfully sued St. George’s Healthcare National Health Service Trust for libel. Geeta Nargund, M.B.B.S., M.R.C.O.G., was suspended in October 2002 from her position as medical director of a reproductive medicine unit following allegations that she was responsible for a “three-way” embryo mix-up involving three patients and was also responsible for the resulting suspension of the unit. The doctor has received a public apology f rom the Trust for the professional and personal distress caused to her; she has also accepted an undisclosed sum in damages from the Trust.
Telegraph, N. Martin, 6/20/03; BioNews, 6/23/03; BBC News, 6/19/03; The Guardian, S. Hall and R. Allison, 6/20/03.

UK Justice Awards Two Million Pounds to Three Surviving Quads…

A British court has awarded a total of 2 million pounds to the three surviving 10-year-old quadruplets of a woman who claimed she was given too much of the drug Metrodin®, resulting in her becoming pregnant with quadruplets born via emergency caesarean section at 26 weeks. One child died within two days of birth. Of the surviving quads, one has cerebral palsy, another behavioral problems, and the third is healthy. This is one of the first reported cases awarding compensation to children born from an unwanted multiple pregnancy.
BBC, 6/19/02.

HFEA Pilots Adverse Incident Alert System...

A pilot program has been introduced in the United Kingdom to reduce the risks of errors and equipment failures in the 110 licensed fertility centers in that country. All clinics will be required to report to the Human Fertilisation and Embryology Authority (HFEA), any “adverse incidents” that may harm patients which it defines to including anything relating to services that are potentially harm-ful or actually harms any person, embryos, gametes, or staff. If such an incident occurs, an alert will be sent to all the fertility centers in the United Kingdom, HFEA inspectors, and other professional bodies. The pilot program will be evaluated in the hopes of making it permanent.
IVF.net; BBC News Online; 6/6/3.

HFEA Announces Change to Code of Practice for Embryo Storage and Destruction…

Although not passed, a bill introduced in the United Kingdom’s Parliament involving frozen embryos and aimed at protecting both partners involved in IVF treatments has resulted in a change of practice in that country regarding stored embryos. HFEA has announced recently it is changing what is known as a “code of practice” to require consent of both parties to continue storing embryos.

The bill and change stemmed from an earlier incident where embryos were destroyed at the request of an ex-husband without notice to the ex-wife because donated eggs had been used. The change of practice means women in similar positions will have to be given reasonable notice. HFEAhas announced guidelines to clinics to take all reasonable steps to inform each of the parties in writing or by telephone before allowing any embryos to be destroyed. To prevent destructions, however, court intervention will still be necessary.
IVF.net, 5/24/03.

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