"To err is human" ART mix-ups: a labor-based, relational proposal*.(assisted reproductive technology)

Any human endeavor is prey to human error. The consequences of human error in the area of assisted reproductive technologies are magnified by our playing in the field of creation of new human lives and lifelong relationships. Stories of assisted reproductive technology (ART) mistakes continue to fascinate the media and popular culture, pain their multiple victims, and haunt the nightmares of ART participants, past, present, and future. Though there are many kinds of mistakes that can arise in these complex processes, this Article focuses on mistakes or mix-ups involving the accidental use of incorrect gametes (sperm, ova, and embryos) during in vitro fertilization (IVF) procedures. (1)

Susan Buchweitz was accidentally given Robert and Denise B's embryos during IVF. (2) Donna Fasano was mistakenly given the Rogerses' embryos in addition to her own during IVF. (3) In other words, I am focusing on those mistakes where ova are mixed with sperm from the wrong man/donor, the wrong donated ova are mixed with the right sperm, or where one couple's embryos are transferred or implanted into a wrong woman's womb. These mistakes lead to contests over who the parents are or should be, rather than, or in addition to, tort lawsuits for damages. Though these mistakes may provide substantial recovery against the negligent fertility clinic and fertility doctors, those tort lawsuits are not the subject here. This analysis does not include cases where there is criminal conduct, such as when fertility doctor Cecil Jacobson used his own sperm to inseminate 120 women, (4) or when doctors at University of California, Irvine sold eggs and embryos without the progenitors' knowledge to people in other countries. (5) Nor does it include mistakes about the wrong sperm where there is no contest over parentage (6) or when fertility clinics misrepresent their services and fail to adequately control gametes or embryos. (7) Here I focus on which relationships between the ART-conceived child and the hopeful adults who engaged in the ART process will be recognized in law as parent-child relationships.

Of all the IVF procedures that occur everywhere each year, (8) very few result in the kinds of horrific mistakes I discuss here. (9) However, because of the generations-long consequences these mistakes cause, they could, without careful thinking, end up redefining families in ways not rooted in choice, but by happenstance, and sometimes even "force." Our legal system must find appropriate and just ways to resolve the disputes that arise from these mix-ups. The solutions that the law applies must not unwittingly incorporate assumptions or hidden biases that do not inure to the benefit of the children and skew the resolutions in unjust, or even unpredictable, ways for the prospective parents. ART-related mix-ups or mistakes ultimately ask us to consider what the relevant prerequisite(s) for assigning legally recognized parenthood are and what they should be--genetic contribution of gametes, gestational contribution, consent and contract, intent to create a child, intent to rear a child as its parent, existing or pre-existing relationships with the baby/child, the labor of rearing, the parents' needs, the child's best interests, social and emotional parenting, economic support, legal adoption, or something else. They require us to examine this question from a justice, equality, relational, and humanist perspective. They also ask us to examine the roles race and sex biases (and even economic privilege) play in distorting our legal conclusions about who is a parent.

I begin by telling some of the tales of woe that have occurred in this subcategory of ART mistakes involving gamete or embryo mix-ups. In Part II I look at the proposed ART statute created by a group of University of Iowa College of Law students for a class. (10) For those readers not particularly interested in an analysis of the model statute, that section can be skipped without consequences to my argument. Part III briefly analyzes various courts' approaches to the roles of contract, intention, the Uniform Parentage Act and other statutes, and genetics in assigning parenthood. Part III focuses on recent cases only, in part because of the ever-evolving nature of parentage analysis in ART cases by courts. While my core arguments are addressed to ART mix-ups, I test the application of reasoning from other recent ART cases on surrogacy (collaborative mothering), frozen embryos, assisted insemination, paternity presumptions, and child support rulings. Hopefully these analogies do not lead us too far astray, because ultimately ART mix-ups are sui generis. If I am successful, my analysis will discredit each of the approaches that courts and commentators have employed and plant the seeds from which I grow a "labor-based, relational" theory of parental rights and responsibilities for mix-up cases in Part IV. This Article does not purport to be a comprehensive analysis of parentage cases, theories, and articles, but rather it is part of a developing argument for choosing an alternative approach to resolving parentage disputes in cases of ART mix-ups.

I. ART MISTAKE AND MIX-UP STORIES

I offer this quick listing of reported ART mix-ups primarily to illustrate the range of problems that arise and the increasingly frequent rate at which these errors are reported. (11) Many of these cases, though clearly not all, are discovered because of mix-ups involving people of different races. When parents give birth to children of races different from their own or from the characteristics of the promised gamete donors, the evidence of the mix-up is frequently clearer at birth to the participants and the reproductive clinic and/or hospital staff than when all the parents and the child are of the same race. In other cases where race is not an issue, the mix-up may be discovered later because of the child's physical attributes, personality traits, talents, genetic diseases, blood type, or because the fertility clinic informs the parties of the error.

For purposes of convenience, and perhaps for the effect of the argument, I will refer to race in the cases below as black and white, even though many of the children may be biracial and should be understood as such. (12) Culturally, in the United States at least, black and white have come to represent polar opposites on the continuum of race. This is especially ironic since Professors E.J. Parra, Mark D. Shriver, and R.A. Kittles, among others, have shown that a large percentage of African-Americans, for example, have at least one "white" forebearer, (13) and who knows how many whites have black ancestors? (14) These mix-ups no doubt occur in other racial contexts, but I have not found any reported cases of Asian, Latino/a, or Indigenous peoples in these mix-ups. Ironically, all the cases are presented in black and white, even in 2005. I wish it would be that the answers were as legally and ethically "black and white," but instead we find ourselves enveloped in shades of gray, or more appropriately, pinks and browns.

Professor Cynthia Mabry reports the 1987 case of Julia Skolnick as the first known case of an ART mix-up. (15) Ms. Skolnick, a white woman, wanted to achieve a pregnancy with her deceased husband's frozen sperm. When she gave birth, she had a "dark-skinned" (black?) child that was clearly the result of a sperm mix-up.

The first heavily media-reported case is the Stuarts, a white couple from Utrecht in the Netherlands, who in 1993 gave birth to twins, one white and one black. It was determined that Mrs. Stuart was the victim of fertility clinic negligence. One of her ova was fertilized by the sperm of a black Dutch Antilles man who was at the clinic at the same time trying to create a viable pregnancy through ART with his wife. (16) Fortunately for the Stuarts, the genetic father of the black twin did not seek legal custody, and the Stuarts are raising the boys together as the brothers that they are. (17)

In 1998 Donna Fasano gave birth to one white and one black twin when the embryo of a black couple (Deborah Perry-Rogers and Richard Rogers) was mistakenly implanted in her womb at a New York City fertility clinic (Central Park Medical Services). The black couple brought an action to get assigned exclusive parentage of the black twin. A New York appellate court ruled that Mrs. Fasano, as well as her husband Robert, and even the other twin, were legal, biological strangers to the black twin to whom she gave birth. (18) Fasano and her husband also had their own genetic embryos created and the white twin was unquestionably considered "theirs." The court interpreted the situation in a way that transformed the white mother's role into a gestational surrogate for the black couple, even though she intended to bear and raise only her own children. The Rogerses and the Fasanos separately sued the fertility clinic. The Fasanos settled with the clinic early in the summer of 2004, (19) and the Rogerses reached a settlement on the day of jury selection in September 2004. (20) I wrote extensively on this ART mix-up case. (21)

In 2002 there was a publicized mix-up at St. George's Healthcare Trust, south London, when the "'good' embryos from one woman were implanted in a second, and her [the second woman's] embryos were then implanted in a third." (22) This fertility unit was later closed.

In February 2003, a British court ruled that the husband in a white couple was not the legal father of black twins born to him and his wife after a sperm mix-up at the Leeds Hospital fertility clinic. (23) Since the sperm of a black man, who was also at the clinic trying to conceive a child with his wife, had been mistakenly mixed with the ova of the woman from the white couple, the white woman and the black man were declared the twins' legal parents. (24) The opinion by Dame Elizabeth Butler-Sloss wisely granted custody and parental responsibility to the white couple, but, unfortunately, required the white husband to adopt the twins in order to become their legal father. (25) This case did not turn out as badly as it could have for the white couple, because the black father did not seek physical custody. Nonetheless, he pursued legal paternity and visitation rights, which drastically disrupts their lives. (26) Speculation is that this mix-up may have been the result of a dirty pipette. (27) Because this case caused such an uproar a commission was appointed in 2002 to evaluate the IVF centers of the NHS trust. Brian Toft, who spent two years investigating and writing a detailed, nearly 200-page report that was published in summer 2004, came up with more than 100 recommendations to reduce the likelihood of gamete mix-ups and other clinic errors in the future. (28)

In June 2003 the California Court of Appeals for the Sixth Appellate District ruled about parentage in an embryo or sperm mix-up case. (29) Robert B. and Denise B. contracted for some ova from an anonymous donor to combine with Robert's sperm to later be implanted in Denise's womb. The clinic created thirteen embryos for them. Meanwhile, Susan B., an unrelated single woman, had embryos created at the same clinic for implantation in her own womb. Susan B's embryos were created from an anonymous ova donor and an anonymous sperm donor. Susan B. specifically used anonymous donors to protect herself from any risks of paternity or parental claims by others. Susan became pregnant from the implanted embryos and gave birth to Daniel B. in February 2001. Robert and Denise also achieved a successful pregnancy and gave birth to Madeline ten days later. But, the best laid plans in the ART universe can be foiled by human errors.

In December 2001, eighteen months after the mistake, and when Daniel was already eight months old, the fertility doctor told Susan that a mistake had occurred. (30) The clinic had accidentally implanted Susan B. with three of Robert and Denise B's embryos. Apparently the same ova donor was used for each couple and due to the mistake, Robert was the sperm donor for both births. Therefore, Susan's son Daniel is the full genetic sibling of Robert and Denise's daughter Madeline. As soon as they learned of the mistake, Robert and Denise sought contact with the boy. Robert brought an action to declare his paternity and Denise to declare her maternity. The appeals court affirmed the trial court's finding that Robert B., a total stranger to Susan B., was the child's father and granted him visitation. However, Denise was found to have no standing in any action involving this child, because she was not the ova donor nor the gestational carrier, and thus, a legal stranger. (31) Susan B. (Buchweitz) went public with her story in August 2004, (32) after she reached a one million dollar settlement with her fertility doctor, Dr. Katz. (33) Despite the monetary settlement, Ms. Buchweitz's problems continue as she and Robert battle over parentage, custody, and visitation in family court. (34) Joan Ryan of the San Francisco Chronicle reports that a split custody agreement was mediated by a judge in March 2005. (35)

The dramatic publicity given to Ms. Buchweitz's case prompted some west coast fertility centers specifically to reassure potential patients about the (im)possibility of such a mistake occurring during IVF treatments at their center. (36) In March 2005, Dr. Katz's medical license was revoked. (37) He had learned of the mistake ten minutes after it happened, but did not tell the parties until eighteen months later when he was threatened by a potential whistleblower. (38) The Medical Board refused to entertain his appeal, even though many of his patients rallied to his side. (39)

In August of 2003, a thirteen-year-old boy, who was the product of a 1988 medically assisted insemination at a British fertility clinic north of London, finally got the proof he had been seeking: he is not, in fact, the child of his purported father who is his mother's former husband. His mother was supposed to have been inseminated with her husband's sperm. The parents were divorced when the boy was young, and the father went to court to get access to his son. The boy felt he was very different from the man who was believed to be his father and wanted DNA tests done. It took years and eighty hearings. Finally, a court ordered the DNA tests that proved there had been a sperm mix-up at the clinic. (40) Someone else is the boy's biological father.

In October 2003, Liverpool Women's Hospital admitted that a group of ova/embryos had been exposed to sperm from the wrong men. (41)

In June 2004 a jury awarded Kelly Chambliss $85,000 in compensatory and $350,000 in punitive damages against a fertility clinic that had inseminated her with the wrong sperm in 2002 in North Carolina. (42) The fertility clinic challenged the award of punitive damages. A North Carolina Court of Appeals ruled in March 2006 that "'sufficient evidence existed' to support the award of punitive damages." (43)

In July 2004 Laura Howard, an African-American nurse from Trumbull, Connecticut, filed suit against her fertility doctor's clinic/office for fertilizing her egg with the wrong person's sperm. Rather than her fiance's sperm, she was possibly impregnated with the sperm of one of two white couples who were also at the doctor's office that day. (44) Although the doctor told her about the mistake almost immediately, she decided not to take the morning-after pill because she had been desperately trying to get pregnant for so long. (45) She brought a lawsuit for, among other things, access to information about the possible sperm donor's health. (46) During her pregnancy, Ms. Howard's fiance, an African-American lawyer, declared his unwillingness to raise another man's child. (47) In January 2005 Ms. Howard gave birth to a healthy baby boy. (48) DNA testing that month revealed that her fiance was, in fact, the father, to everyone's relief. (49)

England is not the only part of Europe reporting these mix-ups. In addition to the Leeds Hospital case of A. v. B., discussed above, in August 2004 there was a report of IVF errors giving women babies by the wrong men in Scotland. (50) In September 2004, it became public that an Italian woman in a white couple gave birth to twins with dark skin following fertility treatment four years ago. Three couples received treatment on the same day. Recent DNA tests have confirmed that the biological father of the twins is a North African man. (51) This news came a few days after a newspaper reported that in Turin, Italy, two couples were given the morning-after pill half an hour after one of the couples noticed that the sperm used had another man's name on it. (52)

ART mix-ups will continue to happen. Courts and legislatures must help the victims of these mistakes deal with the parentage issues. Clear rules in advance of the mix-ups appear to be the best method to help, since they may reduce family court contested parentage battles.

II. PROPOSED MODEL ACT'S PROVISIONS REGARDING PARENTAGE

I commend the drafters of the Model ART Act (hereinafter Model Act) for the fine effort they made in producing their first public draft of this Act. (53) They have conceived a statute that settles many areas of dispute that arise from the use of ARTs and collaborative reproduction (surrogacy). Unfortunately, the proposed Model Act fails to address what is and will be the ever-growing category of children and parents whose legal relationships are confused by traumatizing fertility clinic and medical mix-ups. This Part will comment generally on what the Model Act does and does not do in cases of parentage and "future reproduction" disputes. I urge the drafters of this Act, and legislatures in all states that may consider this Model Act, to revise some of the Act's provisions in order to accommodate concerns raised in this Part. I also urge inclusion of an additional, separate article specifically addressing issues of parentage in ART mix-ups. This proposed new article can supplement the Model Act, the Uniform Parentage Act (2000, revised 2002), or other laws regarding parentage that a state adopts. Thoughts about framing the needed additional article are addressed in Part IV.

The Model Act borrows from, but ultimately substitutes for, the revised Uniform Parentage Act (UPA), (54) which replaced the Uniform Status of Children of Assisted Conception Act (55) and the original UPA. (56) Unfortunately, states have been slow to adopt or utilize the revised Uniform Parentage Act. (57) The absence of legislation continues to vex courts who are forced to decide disputes between parties engaging in ARTs, including disputes about legal, "natural" and biological parentage, inheritance rights, posthumous conception, custody and visitation, child support, collaborative reproduction contracts, surrogacy, and more. Courts and commentators have repeatedly pled with legislatures to address these issues. (58) The student drafters take us a long way towards solving many of these legal problems and make some marked improvements over the UPA, particularly in terms of gender-neutrality and accounting for nontraditional families of any sexes.

The Model Act prefers that all aspects of reproductive technologies between gamete donors, prospective parents, (59) and health care providers (60) be governed by the parties' consent and forethought, as memorialized in written contracts. (61) This contract approach arguably may be the correct way to decide disputes that do not involve mix-ups. If a contractual approach is adopted in a particular jurisdiction, then these statutorily required, contractually binding provisions could become a powerful mechanism for resolving certain kinds of ART disputes. (62) However, in certain parts the Model Act does not live up to its promise of implementing ART participants' intentions. Those parts would have to be modified before a legislature adopts them.

Even if the preconception contract was completely valid and the consents were voluntary and informed, the Model Act provides a parentage "out" for all prospective parents (63) and a reproductive "out" for most of the contract signatories who later change their minds prior to the introduction of gametes or embryos into the recipient. (64) This serious defect in the Model Act undermines the emphasis on the parties' intent as recorded in written contracts, even those contracts that anticipate the dispute at issue. For example, the Model Act privileges genetic prospective parents over nongenetic prospective parents in the event of a dispute over embryos. (65) I suggest that section 805 be amended to eliminate the "get out of jail free card" for any prospective parent who signs a contract that contemplated the kind of dispute the parties are experiencing. My critique is based on concerns about the Model Act's making the "advanced directive" contractual promises illusory and violating its own asserted preference for implementing the parties' intent.

Section 805 (a) of the Model Act declares that:

 
  [I]n the event any prospective parent provides a health care provider 
  with notice in a record of a dispute between prospective parents 
  concerning the disposition of embryos: 
  (1) ... the health care provider shall not permit the embryo to be 
  gestated unless the dispute is resolved by agreement or death of one 
  prospective parent; 
  (2) if only one prospective parent contributed genetic material to the 
  embryo, the parent contributing genetic material controls the 
  disposition of the embryo; or 
  (3) if neither prospective parent contributed genetic material to the 
  embryo, the health care provider controls the disposition of the 
  embryo. (66) 

In subparagraph (2) of this section, the Model Act transforms otherwise enforceable and clear contractual agreements into unenforceable promises by giving a gamete donor a complete veto over use of the embryos for reproduction by the non-genetic prospective parent, if that gamete donor changes his or her mind. (67) Perhaps it is not surprising that students at the University of Iowa would craft a statute that reflects the sentiments of the Iowa Supreme Court as expressed in In re Marriage of Witten, (68) that public policy would be violated if an agreement to procreate is enforced after one party has changed his/her mind.

 
  We think judicial decisions and statutes in Iowa reflect respect for 
  the right of individuals to make family and reproductive decisions 
  based on their current views and values. They also reveal awareness 
  that such decisions are highly emotional in nature and subject to a 
  later change of heart. For this reason, we think judicial enforcement 
  of an agreement between a couple regarding their future family and 
  reproductive choices would be against the public policy of this 
  state. (69) 

Several courts have done the same thing, giving gamete donors complete veto power over use of embryos if they change their mind, by relying on a public policy against forced reproduction and a constitutional right not to procreate. (70) In a recent article extensively documented with social science literature, Ellen Waldman makes powerful arguments discrediting the courts' reliance on "the myth of coerced parenthood" to prevent one prospective parent's post-divorce use of frozen embryos created during the marriage. (71) She argues that data, studies, and anecdotal experience show that many fathers who are no longer in a romantic relationship with the children's mother and most sperm donors do not develop psychological, parental attachments to their biological children, so to give presumptive weight to the "myth of coerced parenthood" is misguided. (72) She also challenges the courts' claims that women who were intended parents of these frozen embryos have realistic options for reproductive alternatives. (73) If contracts, as the written embodiments of the parties' intentions going into the embryo creation and preservation processes, cover future events like dissolution of the relationship, yet do not equally bind the prospective parents in cases of such disputes, it is hard to understand the Model Act's claim to promote prospective parents' intentions above all else. The New York Court of Appeals said as much in 1998 in Kass v. Kass:

 
  [It is] particularly important that courts seek to honor the parties' 
  expressions of choice, made before disputes erupt, with the parties' 
  over-all direction always uppermost in the analysis. Knowing that 
  advance agreements will be enforced underscores the seriousness and 
  integrity of the consent process. Advance agreements as to disposition 
  would have little purpose if they were enforceable only in the event 
  the parties continued to agree. (74) 

It is not only the gamete donors who are given decisional authority to prevent reproductive use of the embryos. If neither prospective parent is a gamete donor, but they have had created embryos with an initial intention of creating a child, a dispute over the embryos removes decision-making authority from the intended parents and grants it to a health care provider. (75) This is true even if the contract terms contemplated the circumstances that gave rise to the dispute. The comments to this section note that the health care provider is statutorily permitted to give the embryos to an infertile prospective parent, but need not do so. (76) In that case, the intention of the prospective parent who still desires to use the specially created embryo is slave to the health provider's unbridled and liability-proof discretion. (77) In essence this will often give one prospective parent, who changes his or her mind and creates a dispute over an embryo genetically unrelated to the couple, power to prevent the other party from achieving his/her contractually recorded intention to reproduce. Why should the contract not bind both prospective parents, at least with respect to the option to reproduce, the raison d'etre for the contract in the first place? This provision is flawed in the same way and for the same reasons as the sections challenged in the previous paragraph.

If the parties do not change their minds and continue with the reproductive processes as planned, the prospective parents who intend to become the parents of the child become the legal parents. (78) This is absolutely the correct result. People who intentionally create children should be their legal parents, regardless of genetics or divorce or later changes of heart. (79) "Adults are in the position of making decisions to create children and thus to create children's dependency--decisions in which the children at issue can play no part. Accordingly, it is appropriate to hold adults responsible for the children." (80) Elizabeth Bartholet further instructs that children have deep needs for nurturing and permanency, giving rise to concomitant duties or responsibilities of parents who created them to meet those needs. (81) Whether or not the legal parents cohabit, the permanence of identifiable parents in lifetime relationships with children is essential. This Model Act, by automatically giving parental status to nonbiological, intentional parents once the child is born, prevents many of the grave injustices that have resulted from finding co-parenting partners of genetic progenitors to be legal strangers. (82)

The Model Act is a significant improvement over some parts of the UPA. It also has flaws that make some of its provisions contradict its overriding principle of enforcing preconceptual intent. Before adopting this legislation or something similar, legislatures should make the changes recommended here.

III. STATUTORY AND COMMON LAW INADEQUACY IN ART MIX-UP CASES

The approaches in the proposed statute cannot be extended to mix-up cases, and the current approaches in the common law cannot be justly applied to mistake cases either. This leaves a significant gap in law's response to ART mix-ups. Part III discusses the dominant approaches to parentage created through collaborative, assisted reproduction--contract, intent, UPA, and genetics--and explains why each fails to achieve justice in mistake cases.

A. Contract

Traditional contract notions obviously cannot be applied to mistake cases. Whatever contracts each of the progenitors or prospective parents had between or among themselves, those contracts are unlikely to successfully govern ART mix-ups where embryos, eggs or sperm are negligently implanted in the wrong uterus or gametes are negligently handled so that they are mistakenly given to the wrong parties. Because the victims of these mistakes are unknown to each other, there can be no "meeting of the minds." There is no offer, acceptance, consideration, nor breach of promise. To call victims of a clinic's negligence third-party beneficiaries to the other couple/donor's contract with the clinic makes a mockery of the concept. Worse yet would be application of equitable doctrines such as unjust enrichment, that insinuate wrongdoing/injustice on the part of the "unjustly enriched" party. (83)

Two possible ways that contract terms could be legislatively imposed to govern resolution of mix-up cases are a choice-of-options approach or a mandated result approach. These contract terms, under either option, would have to be mandatory parts of clinic informed consent forms. However, if the terms are mandated, it is harder to understand these clauses in terms of contract law rather than regulation.

The Model Act could require health care providers to address the possibility of a mix-up in the consent forms that prospective parents must sign in order to participate in assisted reproductive technologies. The consents could require prospective parents to select among proposed parentage options in the event of a mix-up or mistake. Theoretically, if the contractual alternatives selected by all parties to the mistake are, by some amazing coincidence, compatible, then the consents could control the resolution of …