Submitted by Shelby D Burns Thu 01/28/2010
The law can’t keep up with the pace of assisted reproduction. Scientific advances in the field of gene therapy and assisted reproduction “add a futuristic twist to an area where the law already is a mess: the question of who, in this age of artificial insemination and surrogacy, should be considered the legal parents of a baby,” columnist Adam Cohen writes in the New York Times. Recently, scientists at the Oregon National Primate Research Center attempted to screen for diseases inherited through maternal DNA. They replaced defective DNA from one female monkey with genetic material from another female’s egg. The procedure, which theoretically could work for humans, would result in a baby with three biological parents, or fractional parents, according to Adam Kolber, a professor at the University of San Diego School of Law. “Even in simpler cases, the law of parenthood is badly muddled,” Cohen writes. Surrogacy laws vary widely state to state. The battle comes down to intent versus biology and more often than not, courts will side with biology. “When it comes to deciding parenthood, courts remain deeply influenced by biology, even when it clashes with intent,” Cohen says. The clash between biology and intent is currently at issue in a New Jersey legal case — AGR v. DRH and SH — in which the surrogate mother and egg donor gave birth to twins using her brother’s male spouse’s sperm. In a contract, she initially agreed to give full custody to her brother and his husband but later sought to be declared the legal mother. A trial court awarded her and the brother’s spouse legal rights as parents. No parental rights were given to her brother. “When technology transforms a legal field… judges and legal thinkers have to decide what are the important values,” Cohen says. He concludes, “The law should move toward a greater recognition that the intent of the people involved is more important than the genes.” It is not likely that these issues will be resolved fully or to anyone’s satisfaction, but they need to be considered sooner rather than later as technology continues to advance.