Identifying “Mom” and “Dad”: The Legalities Facing Assisted Reproduction

In Discover magazine’s annual “Year in Science” issue for 2010, J. Craig Venter’s announcement of the first synthetic organism was the number two-ranked story of the year, behind the catastrophic oil spill in the Gulf of Mexico. Venter’s team created a bacterium genome and inserted it into another bacterium that had been stripped of its DNA. The new cell successfully replicated. Alarmed commentators quickly speculated about the fearful results of Venter’s creation escaping from the lab and mutating. Those same fears were expressed back in 1973, when Stanley Cohen and Herbert Boyer reported that they had isolated fragments from one bacterium and inserted them into another, thereby creating a new bit of living cellular material. As with Venter’s experiment, the 1973 debate initially focused on the wisdom of releasing new life forms outside of the controlled laboratory environment. To address these fears, the federal government eventually empowered the FDA to review and license genetically engineered drugs for people and animals. Similarly, the EPA received similar powers for biotechnology pesticides, and the Department of Agriculture gained regulatory authority over gene-altered crop plants and livestock. This regulatory scheme, still in place today, makes it unlikely that Venter’s bacterium will be released in the wild any time soon.

Contrast this research with that related to in vitro fertilization (IVF). Worries about possible birth defects and the discarding of gametic material, among other issues, led to a ban on the use of federal funds for IVF research in 1973, but research continued in other countries. A 1978 press release in the United Kingdom, in which Drs. Steptoe and Edwards introduced the first”test tube baby”to the world, radically altered the discussion. Similar to Venter’s synthetic genome, the success of IVF was termed the”medical media event of the year”by journalists. After roughly 100 unsuccessful attempts at in vitro fertilization, in which the egg and sperm are joined in a petri dish and later implanted in a woman’s uterus, the process ended successfully with the birth of Louise Brown.

Once an apparently healthy baby was born, the U.S. lifted the ban on federal research funds, but otherwise left oversight of IVF to the states. Today, IVF clinics report to the Centers for Disease Control, and various state regulations incidentally affect IVF, such as bans on the sale of ova, or refusals to enforce surrogacy contracts. However, generally speaking, the free market has reigned. By determining that the procedure for Louise Brown’s mother was a treatment for her infertility rather than medical experimentation on human subjects, the IVF industry was allowed to develop in the United States before a plan was in place to deal with parentage, inheritance, and other issues.

As a result, not only has there been considerable uncertainty in the law governing IVF and the rights of children of assisted reproduction, but also plenty of litigation. A case now before the United States Supreme Court, Astrue v. Capato, will decide whether children born years after a wage earner’s death qualify as his “children” for purposes of Social Security survivor benefits. Robert Capato’s widow used his frozen sperm to conceive twins born 18 months after he died. The applicants argue that a genetic test should be used, while the Commissioner of Social Security and most Courts of Appeals have deferred to state intestacy laws to determine parentage. The issue also arises in federal arenas other than Social Security, such as awarding of citizenship. To determine whether a child born outside of the United States is a U.S. citizen at birth, the State Department has adopted a genetic test of parentage. While a genetic test may be attractive in these cases because of the scientific reliability of DNA testing, the results raise problems for children conceived using assisted reproduction.

In many instances involving assisted reproduction, the genetic parent does not intend to be the parent of the child. Whenever donor sperm, ova, or embryos are used in assisted reproduction, the donor has usually agreed not to seek parentage rights in a resulting child. With gestational carrier agreements, the carrier is biologically connected to the child as the birth mother, but she has agreed she will not claim to be the resulting child’s mother (although her agreement may not be enforceable in all states).

Should we move to a regime of intended parents for children of assisted reproduction, as the Uniform Probate Code has urged? Such a move would require a fundamental shift in the way states approach parentage: away from biological and genetic markers, and toward intent (or consent) to be a parent of the resulting child. As the use of assisted reproduction becomes more widespread and technologically advanced, the debate over genetic versus intended parents will demand resolution.

Professor Kristine Knaplund joined the Pepperdine faculty in 2002. She teaches Property, Wills and Trusts, Advanced Wills and Trusts, and Bioethics. She is an invited author on SCOTUSblog for the U.S. Supreme Court case Astrue v. Capato which will be decided this term. Professor Knaplund has written extensively on the legal and ethical issues that arise when children are conceived and born years after a genetic parent has died, including articles in the Arizona Law Review, Kansas Law Review, the Duke Journal of Gender Law and Policy, the Michigan Journal of Law Reform, and the ABA Real Property, Trust and Estate Law Journal. She is an Academic Fellow of the American College of Trust and Estate Counsel, and serves as vice chair of the ABA Elder Law, Disability Planning and Bioethics Group. This article is adapted from Professor Knaplund’s article in the Valparaiso Law Review, Synthetics Cells, Synthetic Life, and Inheritance, which was named one of the top ten articles of 2011 by Tax Notes.

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