More on Belsito. The Belsito court made an interesting
comment: “For the best interest of the child and society,
there are strong arguments to recognize the genetic parent as the
natural parent. The genetic parent can guide the child from
experience through the strengths and weaknesses of a common ancestry
of genetic traits.” Is this true or wishful thinking? There
is evidence that personality traits, such as agreeableness, extroversion,
neuroticism, and novelty-seeking, have a strong genetic component. See,
e.g., www.biojuris.com. Addiction also has a clear genetic
basis. Epidemiological studies indicate that genetic factors
increase the risk of addictive behavior, such as alcoholism. Nestler, Nature
Genetics, 26:277-281, 2000. Having an alcoholic parent
is considered to be the primary determinant of whether children
become alcoholics themselves. Whether alcoholism and other
addictions are explained by genetic or environmental factors, the
issue is the same: Does a parent’s weaknesses really strengthen
a child’s chances of avoiding them, or does it increase the
probability that such child will turn out to be the same, flaws
and all?
The Baby M case. Yet another approach to surrogacy
disputes is to consider the best interests of the child. One
of the most highly publicized cases of surrogacy was the Baby M
case. William and Dr. Elizabeth Stern had contracted with
Mary Beth Whitehead to be artificially inseminated with William’s
sperm. After giving birth, Mary Beth changed her mind, refusing
to hand the child over to the Sterns. Under both the genetic
and birth tests, Mary Beth was the legal mother of Baby M. She
failed the intent to procreate test promulgated by the Johnson court,
however, since, at the time of conception, she did not intend to
become a parent herself, but instead had contracted to carry a
baby for the Sterns. The case took on soap opera proportions,
when Mary Beth with Baby M in her arms, refused a court order to
give up the child. Instead, she fled the state, living in
a series of motels, while the Sterns, the media, and the police
were in hot pursuit.
Ultimately,
the New Jersey Supreme Court invalidated the surrogacy contract
between the Sterns and Mary Beth. In the Matter of Baby
M, 109 N.J. 396, 537 A.2d 1227 (N.J. 1988). According
to the opinion, public policy, as well as statutory state law,
prohibited the use of money in connection with adoptions. The
surrogacy arrangement between the Sterns and Mary Beth was nothing
more than baby selling. Baby-selling, the court, opined,
was potentially exploitative for all parties involved.
Having decided that the contract was invalid and unenforceable,
the court resolved the custody issue in favor of the Sterns for
the reason that it was in the best interests of Baby M. There
were two issues that weighed in the Stern’s favor, financial
and psychological. The Sterns were in a better position financially
than the Whiteheads. In addition, the stability of the Whitehead
household was in question. Mr. Whitehead was an alcoholic,
and Mary Beth was apparently controlling and emotionally unstable
(“Certain of the experts noted that Mrs. Whitehead perceived
herself as omnipotent and omniscient concerning her children.”). For
these reasons, the court gave permanent custody of Baby M to the
Sterns. On the other hand, according to the Belsito court,
the genetic mother is best suited to prepare her genetic child
to deal with inherited weaknesses and traits. Wouldn’t
it have been better to place Baby M with her genetic mother to
deal with a possible propensity toward control issues and emotional
instability?
The McDonald case. In McDonald v. McDonald,
196 A.D.2d 7, 608 N.Y.S.2d 477 (N.Y. 1994), Robert McDonald sought
custody of the two children of the dissolved marriage on the grounds
that the mother was not the legal mother of the children. Olga
McDonald, now Olga Benitez had conceived of two twin girls by in
vitro fertilization. The sperm was Robert’s, her then
husband, but the ovum was from an anonymous female donor. Olga
was the gestational mother. In the custody battle, Robert
argued that his claim to custody was superior to Olga’s because
he was their genetic father, while she was completely unrelated.
The
court denied Robert’s request on the grounds that Olga was
the legal mother under both the birth and intent to procreate tests. Moreover,
she had been the custodial parent since the birth of the twins. However,
the court did grant his request to amend the birth certificates
of the children to state that he is their father and to change
their surname from Benitez to McDonald. Doing so, the court
said, reinforces the principles of legitimacy. Moreover, “Deprivation
of a father’s surname is a serious and far-reaching action,
more so in our American society with respect to a male child that
normally carries a surname throughout life, but still an important
right with respect to a daughter.” The twins were girls.
Adoption versus new reproductive strategies. Surrogacy,
artificial insemination, in vitro fertilization, and other modern
reproduction methods look a lot like adoption. The following
is a summary of several possible scenarios.
|
A.
Adoption |
B.
W adopts H’s child |
C.
H adopts W’s child
|
D.
Artificial Insem- ination |
E.
Baby M
(1988) |
F.
Johnson (1993);
Belsito (1994) |
G.
McDonald (1994) |
H.
Buzzanca (1998) |
gamete donor |
|
|
|
|
|
|
|
|
• ovum |
A |
S |
W |
W |
S |
W |
A |
A |
• sperm |
A |
H |
A |
A |
H |
H |
H |
A |
gestational mother |
A |
S |
W |
W |
S |
S |
W |
S |
A, anonymous; S, surrogate; W, wife; H, husband. The
table illustrates the relationship between old and new reproductive
strategies. A wife’s adoption (B.) of stepchildren
from her husband’s first marriage is analogous to the situation
where an infertile wife “conceives” of a child with
her husband’s sperm and a donor’s egg (E.). Adoption
by a husband of a wife’s child from an earlier marriage (C.)
is like artificial insemination (D.). Adoption of a completely
unrelated child by a couple (A.) is like Buzzanca (H.),
where a couple creates an offspring from donor sperm and donor
ovum. An entirely new reproductive strategy is seen in the Johnson and Belsito cases
(F.), where an offspring related to both the wife and husband is
gestated by an unrelated female. McDonald is another
case where no strategy like it had been seen before. In this
case, the wife gestates an unrelated ovum fertilized with her husband’s
sperm.
Two moms and a dad. Some babies have three biological
parents. Some women are infertile because of defects in their
mitochondria, the powerhouse of the cell. To overcome this
defect, researchers took egg cytoplasm containing mitochondria
from an unrelated ovum, and injected into the ovum of an infertile
woman. This modified ovum was fertilized with the husband’s
sperm, and then implanted back into her ovary. Children born
from such a procedure carry DNA from the father who is the sperm
donor, the mother who produced the defective ovum, but also mitochondrial
DNA taken from the unrelated, donor ovum. This is the first
reported case of a human being genetically-altered. Barritt
et al., Human Reproduction, 16:513-516, March 2001.
(6) Adoption is not limited to humans. Delilah and Charlotte
were red-capped mangabeys living at the Audubon Park and Zoological
Garden in New Orleans, Louisiana. Delilah was the older and
more dominant female. They both became pregnant at the same
time by the same male. Delilah had already had several children,
but this was Charlotte’s first. Charlotte’s baby
was born a week before Delilah’s. The day after Delilah’s
baby, Nikita, was born, he was found in the arms of Charlotte,
along with her baby Sasha. Delilah made no attempt to retrieve
him. For two months, Charlotte took care of both infants. Nikita
then began to approach his biological mother. She carried
him intermittently, but he always returned to Charlotte who nursed
him. After about two-weeks, Delilah took her baby back. Watts
et al., Laboratory Primate Newsletter, 32(4): 18-20, 1993. For
what reason did Nikita’s biological mother give him up for
adoption and then why did she take him back? This sounds
like a strategy many humans embrace. Having already had several
children, she knew from experience that the first few months of
an infant’s life is the most taxing time for the mother,
so she enlisted the help of a nursemaid by letting the younger
Charlotte take on the burden.
Surrogate statutes. To make matters easy, some
states have adopted laws that determine parentage when surrogates
are used. From Virginia’s Code:
§ 20-158. Parentage of child resulting from assisted conception.
A. Determination of parentage, generally. - Except as provided
in subsections B, C, D, and E of this section, the parentage of
any child resulting from the performance of assisted conception
shall be determined as follows:
1. The gestational mother of a child is the child's mother.
2. The husband of the gestational mother of a child is the child's
father, notwithstanding any declaration of invalidity or annulment
of the marriage obtained after the performance of assisted conception,
unless he commences an action in which the mother and child are
parties within two years after he discovers or, in the exercise
of due diligence, reasonably should have discovered the child's
birth and in which it is determined that he did not consent to
the performance of assisted conception.
3. A donor is not the parent of a child conceived through assisted
conception, unless the donor is the husband of the gestational
mother.
B. Death of spouse. - Any child resulting from the insemination
of a wife's ovum using her husband's sperm, with his consent, is
the child of the husband and wife notwithstanding that, during
the ten-month period immediately preceding the birth, either party
died.
However, any person who dies before in utero implantation of an
embryo resulting from the union of his sperm or her ovum with another
gamete, whether or not the other gamete is that of the person's
spouse, is not the parent of any resulting child unless (i) implantation
occurs before notice of the death can reasonably be communicated
to the physician performing the procedure or (ii) the person consents
to be a parent in writing executed before the implantation.
C. Divorce. - Any child resulting from insemination of a wife's
ovum using her husband's sperm, with his consent, is the child
of the husband and wife notwithstanding that either party filed
for a divorce or annulment during the ten-month period immediately
preceding the birth. Any person who is a party to an action for
divorce or annulment commenced by filing before in utero implantation
of an embryo resulting from the union of his sperm or her ovum
with another gamete, whether or not the other gamete is that of
the person's spouse, is not the parent of any resulting child unless
(i) implantation occurs before notice of the filing can reasonably
be communicated to the physician performing the procedure or (ii)
the person consents in writing to be a parent, whether the writing
was executed before or after the implantation.
D. Birth pursuant to court approved surrogacy contract. - After
approval of a surrogacy contract by the court and entry of an order
as provided in subsection D of § 20-160, the intended parents
are the parents of any resulting child. However, if the court vacates
the order approving the agreement pursuant to subsection B of § 20-161,
the surrogate is the mother of the resulting child and her husband
is the father. The intended parents may only obtain parental rights
through adoption as provided in Chapter 10.2 (§ 63.1-219.7
et seq.) of Title 63.1.
E. Birth pursuant to surrogacy contract not approved by court.
- In the case of a surrogacy contract that has not been approved
by a court as provided in § 20-160, the parentage of any resulting
child shall be determined as follows:
1. The gestational mother is the child's mother unless the intended
mother is a genetic parent, in which case the intended mother is
the mother.
2. If either of the intended parents is a genetic parent of the
resulting child, the intended father is the child's father. However,
if (i) the surrogate is married, (ii) her husband is a party to
the surrogacy contract, and (iii) the surrogate exercises her right
to retain custody and parental rights to the resulting child pursuant
to § 20-162, then the surrogate and her husband are the parents.
3. If neither of the intended parents is a genetic parent of the
resulting child, the surrogate is the mother and her husband is
the child's father if he is a party to the contract. The intended
parents may only obtain parental rights through adoption as provided
in Chapter 10.2 (§ 63.1-219.7 et seq.) of Title 63.1.
4. After the signing and filing of the surrogate consent and report
form in conformance with the requirements of subsection A of § 20-162,
the intended parents are the parents of the child and the surrogate
and her husband, if any, shall not be the parents of the child.
§ 20-159. Surrogacy contracts permissible.
A. A surrogate, her husband, if any, and prospective intended
parents may enter into a written agreement whereby the surrogate
may relinquish all her rights and duties as parent of a child conceived
through assisted conception, and the intended parents may become
the parents of the child as provided in subsection D or E of § 20-158.
B. Surrogacy contracts shall be approved by the court as provided
in § 20-160. However, any surrogacy contract that has not
been approved by the court shall be governed by the provisions
of §§ 20-156 through 20-159 and §§ 20-162 through
20-165 including the provisions for reformation in conformance
with this chapter as provided in § 20-162. |