4.  Whose Child Is This?

After a long courtship, Alice and Charles made the commitment to marry and have kids.  Although they tried assiduously for several years to have a child, Alice just couldn’t get pregnant.  Counseling with a fertility specialist revealed that Alice had defective ova, but a functioning uterus.  The specialist suggested that they create an embryo by in vitro fertilization using Charles’s sperm and a donor egg, and then transfer the embryo into Alice’s uterus for implantation and gestation.  Because they wanted the child to be 100% genetically related to both of them, they asked Alice’s sister, Mabel, to donate ova.  Mabel readily agreed.  The procedures went as planned.  During Alice’s pregnancy, Mabel tragically was diagnosed with ovarian cancer and had her ovaries removed.  This change in circumstances caused Mabel to rethink the ova donation.  She realized that the ovum Alice had used to create the embryo was now her only chance to have her own baby.  When a baby boy, Lewis, was born, Mabel demanded it as her own.  She was the genetic mother, she claimed, and therefore rightfully entitled to it.  Alice and Charles refused.

Whose child is it?  Mabel’s? Alice’s? Alice’s and Charles’s? Or, Mabel’s and Charles’s?  Because a child is not permitted to have more than one set of natural parents, there must be rules to resolve disputes that arise when assisted reproductive technology (“ART”) permits people’s desires to go awry.  So far, four main tests have been used by courts to settle legal battles over ART parentage: 1) intent to procreate; 2) genetic relatedness; 3) gestational mother; and 4) best interest’s of the child. 

According to the intent to procreate test, the legal parents of the child are the individuals who made the decision to create the child in the first place.  For baby Lewis, Alice and Charles would be his legal parents, not Mabel, since they originally planned for the production of the child.  This test gives parties the freedom to contract with one another, without regard to the subject matter of the contract.  Is this good for baby?  While contract rights are typically favored in societies with capitalistic roots, enforcing contracts that involve artificial reproductive technologies encourages baby selling, something that these same societies often consider morally repugnant.

In its simplest formulation, the genetic test simply requires evidence of which parent made a genetic contribution to the baby.  When there is an egg donor and unrelated, but birth mother, the choice is transparent.  It goes with the genes.  Mabel and Charles are Lewis’s immediate genetic parents since they contributed the starting materials.  However, Alice is Lewis’s aunt, and therefore genetically related, albeit once removed.  Under a broader version of the genetic test, she certainly could make a claim to the baby.

For deciding the maternal side of the parenthood question, the gestational test is the most straightforward, and many states have adopted it by statute.  For instance, according Section 20-49.1 of the Code of the Commonwealth of Virginia, “The parent and child relationship between a child and a woman may be established prima facie by proof of her having given birth to the child.” Under this test, giving birth to a child is sufficient evidence to establish parentage.  Since Alice meets the gestational test, but Mabel does not, Alice is baby Lewis’s mother by this criteria.

Which test is favored from an evolutionary perspective?  Once again, it’s for the birds – a cuckoo bird.  A cuckoo does an unusual thing with its eggs.  When it’s ready to produce an egg, the mother cuckoo doesn’t build its own nest, but instead deposits the egg into another bird’s nest.  The egg is brooded by the other bird, who, when the baby cuckoo hatches, feeds and nurtures it as if it were its own.  Either the foster mother is unable to recognize the alien cuckoo as an intruder, or the baby’s cries for food are so potent a stimulus that she doesn’t care, but the host bird takes on parentage despite the fact that she is unrelated and that the egg is from the uterus of an alien cuckoo bird.  What counted for the mother is that she intended to be a parent, and apparently, any child would do.

Adoption and surrogacy are the human equivalents of cuckoldry, and the same rule should apply.  Especially in adoption, one set of parents “trick” another parental couple into being caregivers to their child.  But does this make evolutionary sense? According to evolutionary biologists, only behaviors likely to benefit one’s self or one’s kin will survive natural selection.  A complete altruist, who only raises the unrelated offspring of another, loses the opportunity to pass his altruistic genes on.  The family heirlooms die out.  What is there to gain from spending energy and resources on a genetically unrelated child?  One explanation is that, when an individual’s own attempts at genetic procreation are frustrated, adoption provides a way of channeling the otherwise unfilled parenting instincts.

Successful procreative behavior includes not only catching a mate, but also providing parental care to offspring to ensure that they can fulfill their own reproductive potential.  Call one “mating behavior,” and the other “caregiving behavior.”  Usually, they go hand and hand because individuals who are good at mating, but poor at caregiving, suffer genetically because their offspring, at worst, die before reproducing, or at best, produce fewer of their own children than progeny whose parents were good caregivers.  As a result of positive selection, most individuals in the population display both behaviors.  Adoption and other artificial reproductive procedures dissociate the two behaviors.  An individual who is a failure at mating can still have an opportunity to care for a child, and even experience gestation, through procedures like artificial insemination and embryo grafting.  Artificial reproduction can be characterized as maladaptive in that it mimics acts associated with procreation, but does not result in genetic progeny. However great the individual’s caregiving genes happen to be, they do not end up in the body of another person.  In principle, those individuals who are inadequate in mating behavior lose their place in the population pool.  Instead, the benefit is reaped by the gamete donors who disperse their genes at the expense of willing caregivers.  A “good for society” rule might outlaw adoption and other artificial procreative strategies in order to prevent the spread of faulty mating behavior genes.

In Anna Johnson v. Mark Calvert et al., 851 P.2d 776 (Cal. 1993), we see the human version of cuckoldry.  Crispina and Mark Calvert were a young couple who wanted genetic children, but lacked the complete biological machinery to actualize their dreams.  Crispina had a normal ovary, capable of producing eggs, but no uterus to carry a baby to term.  They turned to Anna Johnson, who agreed to become the cuckoo’s nest for Crispina’s egg.  According to the terms set out in a contract, Anna would be the gestational mother for an embryo created by in vitro fertilization from Mark’s sperm and Crispina’s egg. 

At first, everyone was happy with the arrangement.  But along the way, Anna changed her mind, and when the baby was born, she refused to relinquish her parental rights to the child, even though she had no genetic connection to it.  Like the mama cuckoo bird, Anna was unable to resist the baby’s cries for a mother.  It is tempting to interpret Anna’s maternal weakness as evidence that consanguinity is not required for a mother’s instinct to kick in.  She doesn’t sniff her baby’s genes and then decide whether to love it.  Maternal love is stimulated by whatever is growing inside, and chooses to emerge into the real world.  This is definitely good for baby. 

In addition to asserting her basic civil right to procreate, Anne relied on the gestational test set forth in the California statute, creating the presumption of a mother and child relationship when a woman provided proof of having given birth to the child.  In statutory terms, Anna could prove that she was the baby’s mother, even though she was completely genetically unrelated to it.  The court was faced with resolving the question of who was to be the baby’s mother: the gestational mother or the genetic mother?