July 17, 2002
9:10 AM Subscribe

White couple gets black twins, sue IVF clinic. Experts say a mistake could have occurred in one of three ways.The wrong sperm could have been used to fertilise the right egg, the right sperm could have been used to fertilise the wrong egg, or the embryo implanted in the woman may have been another couple's altogether. Although it is not clear whether another couple has laid claim to the children, legal experts say the judge will be expected to make a modern-day judgment of Solomon on who should be considered the babies' legal parents. This is unploughed legal ground. Is there a fair way to sort this out?
posted by Mack Twain (34 comments total)

In 50 years, this kind of case will be seen as a remnant of an unenlightened past. I hope.
posted by mediareport at 9:13 AM on July 17, 2002

Yes -- check genetic material, and figure out which of those things happened...

If the birth-parents have a genetic connection to the kids, then they should get them

If not, then they have to realize they were the surrogates, and need to give up the kids, and be compensated for being surrogates, and for mental anguish for having someone else's kids....then, try again for their own kids.

In the mean time, neither family should be charged for any services rendered.... the company made a mess of things, and shouldn't be compensated for failure.
posted by dwivian at 9:15 AM on July 17, 2002

In 1999, a black baby was born to a white couple because of an embryo mix-up at a New York clinic. In that case the couple was ordered to return the boy to the biological parents.
That's sad for all involved.
posted by ColdChef at 9:17 AM on July 17, 2002

If it was a case of mixed-up sperm, but the birth mother supplied the ova, than the other guy is most likely out of luck if the husband of the birth mother wants to keep the child.

The common law in the US and the UK grants the husband of a birth mother the benefit of an "irrebutable presumption of paternity" -- meaning that even if another man can prove himself genetically the father of the child, that other man has no rights whatever. In most cases, the other man can't even require the test to be taken in the first place.

(The US law varies from state to state on whether such a husband can waive his own rights in this respect -- typically, the answer is "yes" but with a time limit. After the time limit, parternity, including its attendant child support obligations, is irrevocable. I don't know what the UK law is on that question.)
posted by MattD at 9:18 AM on July 17, 2002

what's worrisome is that the mistake would probably have gone undetected if not for the obvious difference in skin color. which probably means that other couples who have had children through the clinic will start to wonder if a mistake was made with them, so they'll get tested, and if it turns out that there were other mistakes--well, what happens then?
posted by witchstone at 9:19 AM on July 17, 2002

Witchstone: ...and if it turns out that there were other mistakes--well, what happens then?

Vouchers for 50% off "your next IVF"?
posted by PinkStainlessTail at 9:26 AM on July 17, 2002

The common law in the US and the UK grants the husband of a birth mother the benefit of an "irrebutable presumption of paternity" -- meaning that even if another man can prove himself genetically the father of the child, that other man has no rights whatever. In most cases, the other man can't even require the test to be taken in the first place.

MattD, this was probably the case at common law, but in most states this rule has been superseded by statute. In a quick google search, the first eight states I found with statutes governing the presumption of paternity allowed that presumption to be rebutted by clear and convincing evidence. Certainly, the burden of proof is not an insignificant obstacle, but I would assume that a genetic test with 99% accuracy is pretty clear and convincing.

The remaining issue, of course, is whether a third party can require a genetic test to be taken. That is a thornier legal issue to which I don't have an answer.
posted by monju_bosatsu at 9:31 AM on July 17, 2002

Is there any reason a couple would need in vitro fertilization but still be able to use sperm and egg cells from their own bodies? If that was the case here, then I wouldn't fault the white couple for being upset at the outcome. But if it's just a case of not wanting to, you know, mix those darn races in donated sperm, eggs and/or embryos, isn't that just reinforcing the artificial and biologically meaningless category of "race" at the expense of, you know, humanity?

From Navigating Race in the Human Gamete Market:

"Explicit racial selectivity in the gamete market has the potential to uncover submerged racial biases that permeate the U.S. social terrain. But if we unearth these racial desires only to ignore them, thereby affirming them by default, then we end up sanctioning stereotypes of race-based familial structure. The fact that racially coded donor profiles exist and can be viewed by the public makes this practice part of our public consciousness. Hence, race-based donor choices are inextricably tied to public notions of the normative role that race ought to play in family formation."
posted by mediareport at 9:46 AM on July 17, 2002

witchstone: there *have* been other uh, "mistakes". I'm thinking primarily of the infamous doctor who substituted his own sperm for that of the husbands of his patients.

The kids were the spitting image of the doctor, is how it all finally got discovered (and with the subsequent genetic tests). I think there were a dozen or more such kids, at least. The guy was unrepentant and maintained that he had done his patients a favor. He's in jail now, where he belongs.

Er, my Google-Fu is not strong right now, I can't find an article on it. Anyone? Anyone?
posted by beth at 9:59 AM on July 17, 2002

Mediareport: Yes, it's a common infertility practice to have in-vitro fertilization and re-implantation when a husband's sperm has low mobility, low count, or other factors.

One interesting point that hasn't been brought up yet is that if the twins have no genetic link to the birth parents, are we certain that their genetic parents were even trying for their own baby? They could have been sperm and egg donors for all we know. If the genetic parents had no intention of having a child, what happens then?

Or another possibility, what if the genetic material was a second dose of sperm and ova which were unneeded, and the black genetic parents already had a successful pregnancy as a result. Are they suddenly obligated to care for these two children that came 'out of nowhere'?
posted by kfury at 10:09 AM on July 17, 2002

Err, 'motility'.
posted by kfury at 10:10 AM on July 17, 2002

Is there any reason a couple would need in vitro fertilization but still be able to use sperm and egg cells from their own bodies?

Yep. Tubal ligation, scarring of the vas deferens, low-motility sperm (as kfury said on preview) a few other things. You can have healthy eggs or sperm and be unable to get the one to the other "naturally".

I worry most about the children here (someone has to THINK OF THE CHILDREN!!!). It's unlikely that they'll never find out about this, and I suspect they'll ultimately be the ones who suffer the most.
posted by biscotti at 10:13 AM on July 17, 2002

the judge will be expected to make a modern-day judgment of Solomon

At least there's two babies...
posted by SpecialK at 10:22 AM on July 17, 2002

beth: i can't believe i forgot about dr. cecil jacobson! i was in a show that did a musical number (to the tune of "gaston" from beauty and the beast--don't ask) that dealt with his, um, prolific achievements.
posted by witchstone at 10:22 AM on July 17, 2002

Another reason to use in vitro fertilization: the woman has eggs, but her body won't release them without huge doses of hormones.

Better to carefully remove them in a surgical procedure, count them, check for irregularities that threaten viability, fertilize them, then check the embryos for health through the first few cell divisions before implanting them two or three at a time (freezing the rest for later implantation cycles / donation / whatever), than end up with sextuplets or nonuplets or dodecaheptuplets or whatever because you can't control the process when it's all going on in the dark squishy places inside people's bodies.

Seems to me like the closest thing to true justice in this case hinges on the identity and wishes of the children's true genetic parents, which isn't being released to the press (yet), even if it is known.
posted by beth at 10:23 AM on July 17, 2002

Perhaps sale of the rights to the story might be of some consolation to the parents. Sounds like a fine sitcom premise!

I AM thinking of the kids.
posted by luser at 10:23 AM on July 17, 2002

luser: Hasn't Diff'rent Strokes already been done?
posted by mr_crash_davis at 10:34 AM on July 17, 2002

How do you get black twins from:
"The wrong sperm could have been used to fertilise the right egg, the right sperm could have been used to fertilise the wrong egg..."

Then again, I guess people who are part African and part European (?) are considered black before anything else. Strange. I suppose it's a visual thing.
posted by ODiV at 11:20 AM on July 17, 2002

I think witchstone makes a valid point. If they babies hadn't been black, the odds are that the mistake wouldn't have been noticed...at least until after the parents and children had bonded.

This BBC report makes it sound as though this sort of thing happens more often than thought. Here are more BBC links to IVF mistakes.

According to what I've read, the birth mother is the legal mother, even if none of the genetic material belongs to her. The father's position is a tad more precarious.

I haven't found any reports that discuss what the parents who went for IVF treatment want. Do they want to keep the children? Do they not want the children because they're black? Do they not want the children because it isn't their genetic offspring? Is another couple fighting them for custody, like the NY case?

But, like many of the other MeFi's here, I feel most sorry for the poor babies. What a horrid way to start off.
posted by dejah420 at 11:25 AM on July 17, 2002

Why don't these people just adopt, anyway? Is the urge to have little copies of you running around all that strong? I think if I want to have kids, I'll adopt at least one.

Guess there's red tape and waiting to adopt, too though.
posted by ODiV at 11:30 AM on July 17, 2002

I agree with ODiV...what's the obsession with genetics? If the couple who had the twins want the twins then they should get the twins. Genetics has, in my experience, very little to do with parenthood.
I want to know the same thing as dejah420 ... are the parents are suing to get money back for the procedure, or because they don't want the kids.
posted by y10k at 11:34 AM on July 17, 2002

The genetics question is pretty simple, actually --

When you picked your partner, you picked them based on their genetics -- their intelligence level, their appearance, their physical abilities, and that thing they do with their tongue right *THERE*.....

Now, in picking such a thing, you've shown you have an innate assumption that the genetics you desire are superior to other genetic patterns you interact with. Wanting your family to have similar genetics, and thus be superior, is reasonable.

I know, because I have a daughter and a son that are better children than any of yours. Neener.
posted by dwivian at 11:41 AM on July 17, 2002

My girlfriend is legally blind and OCD runs in her family.

So there.
posted by ODiV at 12:30 PM on July 17, 2002

the last guy i was with before my current partner was a legally blind hemophiliac albino. yeah, i was REALLY selecting for superior traits there.
posted by dagnyscott at 1:42 PM on July 17, 2002

the genetics you desire are superior to other genetic patterns you interact with.

Genetics, schmenetics. Babies are cute, sure, but these days the real evolutionary action's in consciousness, not old skool reproduction. Once self-awareness makes that sudden sideways emergent leap into machines -- my calendar says any day now -- the urge to pop out yet another batch of apes won't seem quite so relevant. Which will make room for symbiotic robot-monkeys racing headlong into networks of electromagnetic information, creating attention so dense it warps the structure of reality and allows pure consciousness to bud off the planet and roam across spacetime free of all the metal and meat that once weighed it down.

Hell yeah. I'll take that over more babies any day.
posted by mediareport at 2:12 PM on July 17, 2002

"Why don't these people just adopt, anyway? Is the urge to have little copies of you running around all that strong?"

It is way easier to make a baby on your own, even using reproductive tech like IVF than it is to adopt a baby. Also, adoption is incredibly intrusive, and there are any number of random factors that make adoption very difficult - one partner in a couple over the age of 40, for example.
posted by kristin at 5:05 PM on July 17, 2002

I have to agree on the adoption being nigh onto impossible thing. My husband and I didn't think we were going to get pregnant, didn't want to go through the weirdness of IVF, or run the risk of having a litter with fertilization drugs, but when we made inquiries about adopting, we were told that there was a 3 year wait, and at the end of that period, we'd be considered too old. (mid to late 30's)

We said that race wasn't an issue...it's not like we were demanding a pureblooded WASP child with breeding papers, we're financially sound, we own a house, a dog and even an SUV, you'd think we'd be prime candidates. And yet, no love from adoption agencies. One agency suggested that we go get a baby from Eastern Europe.

So, we gave up, and started planning for early retirement in a groovy locale....and naturally, (no pun intended) got pregnant and should have our own little tyke sometime around Thanksgiving. :)
posted by dejah420 at 6:55 PM on July 17, 2002

As the article points out, it's possible the babies are half hers, or half his, which--even allowing for a 'strict geneticist' court interpretation--would be sufficient to give this couple grounds for custody anyhow.

I'm going to be controversial and offensive and say that the whole IVF thing ought to be banned, or at least, not tax-funded in any way. It's extremely bad eugenics practice (to the point of potentially creating a new human subspecies unable to reproduce without it), it's purely selfishly motivated, it's ethically questionable, and there are more than enough unwanted kids anyhow. Including kids who are unwanted but still living with their parents.

The root of the problem is the cultural attitude that 'kids belong solely to their parents'. Kids belong to society, they are members of society, and when they are adults themselves, it's society who will suffer or enjoy having them around. Raising kids is a social duty, not a private indulgence. Kids raised in extended families (or the equivalent) grow up more capable and self-reliant for the obvious reason that, if their parents are unable or unwilling to look after them properly, other adults can pick up the slack. If you want to indulge yourself by having a permanent dependent who will always love you and need you and never disappoint you, get a pet. Humans go their own ways, and this is a good thing, because if we all acted just as I would have us act, we'd be wiped out by the first thing that comes along that I can't cope with.
posted by aeschenkarnos at 8:37 PM on July 17, 2002

If its of help British law here is governed by the Human Fertilisation and Embrylogy Act.
This states that the woman who carries a child is the legal mother - period. (English law doesn't approve of surrogacy). Her partner will be the legal father 1) if married to her or 2) if they undertook the fertilisation treatment together.
So, I suspect, the birth parents will have all the rights and responsibilities over and for the child, and the genetic parents will have none.
posted by prentiz at 5:33 AM on July 18, 2002

Okay, I'll bite.

It's extremely bad eugenics practice (to the point of potentially creating a new human subspecies unable to reproduce without it)

Why is this a bad thing? People used to die or lead limited lives without certain medical treatments, they don't now. I don't see your point.

it's purely selfishly motivated

How is it any different in this respect from having children "naturally"? I don't see your point.

it's ethically questionable

How? What's questionable about bypassing blocked fallopian tubes or giving low-motility sperm a hand? You're not messing with genetics, you're just moving a process from inside the body to outside the body.

and there are more than enough unwanted kids anyhow. Including kids who are unwanted but still living with their parents.

I'd argue that the majority of people who go to the trouble and expense of IVF are far more likely to seriously "want" kids than people who just happen to get pregnant. Your point seems to defeat itself, people who don't want kids won't bother with IVF, why would they?
posted by biscotti at 8:18 AM on July 18, 2002

If I ever have kids, they will not belong to society. Got that? Society is nothing but a collection of people. It, as an entity, cannot own even property, let alone human beings. I'd argue it does not exist at all as an entity, but that's for a different thread.
I am so with you on that one. I thought there was some gentle humor in the post you were responding to, so I was thinking over how to respond to that horrible statement. What I kept sticking on was where that idea came from? Why would anyone think that? As if society meant the same thing to any two people anyway. I could certainly do with less mystical explanations about what society is, especially if they are going to be used as an excuse to meddle in the affairs of others.
posted by thirteen at 8:49 AM on July 18, 2002

I will certainly grant aeschenkarnos that there should be no tax money spent on these proceedures.
posted by thirteen at 8:51 AM on July 18, 2002

KRS-One says "society is just people, helping -- or hurting -- other people."
posted by sudama at 1:47 PM on July 18, 2002

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