To Err is Human: ART Mix-Ups - A Labor-Based, Relational Proposal

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.1Susan 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 witii sperm from the wrong man/donor, die 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 die 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, tiiose 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 parentage6 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 flunking, 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 die disputes tiiat arise from these mix-ups. The solutions that the law applies must not unwittingly incorporate assumptions or hidden biases that do not inure to die 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 tiiey 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 III look at the proposed ART statute created by a group of University of Iowa College of Law students for a class.10 For tiiose readers not particularly interested in an analysis of the model statute, mat 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. …