Scientific Advancements Create Legal Questions About Surrogacy, Parenthood, New York Times Opinion Piece States

Main Category: Pregnancy / Obstetrics
Also Included In: Fertility;  Pediatrics / Children's Health;  Women's Health / Gynecology
Article Date: 28 Jan 2010 - 3:00 PDT

email to a friend   printer friendly   opinions  

New scientific advances in the field of assisted reproduction "could 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. In an attempt to screen for diseases inherited through maternal DNA, scientists at the Oregon National Primate Research Center replaced defective DNA from one female monkey with genetic material from another female's egg, Cohen reports. The procedure, which could also 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.

Developments such as these raise potential legal questions that are "difficult to resolve definitively" because "even in simpler cases, the law of parenthood is badly muddled," Cohen writes. Some states expressly allow surrogate parenthood, some prohibit it and others have no laws at all on the subject, according to Cohen. "Since the 1960s, there has been a shift toward recognizing people's intent in creating familial relationships," though "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 -- A.G.R. v. D.R.H and S.H. -- in which a woman serving as a surrogate and egg donor for her brother and his male spouse gave birth to twins conceived with the spouse's sperm. The woman signed a contract agreeing that her brother would adopt the twins but later sought to be declared the legal mother. A trial court awarded her and the brother's spouse legal rights as parents and gave no parental rights to the brother, Cohen writes. "When technology transforms a legal field ... judges and legal thinkers have to decide what are the important values," Cohen says, adding that parenthood "cannot be reduced to a formula." He concludes, "[T]he law should move toward a greater recognition that the intent of the people involved is more important than the genes," which "would provide useful guidance for courts to think about fractional parents" (Cohen, New York Times, 1/26).

Reprinted with kind permission from http://www.nationalpartnership.org. You can view the entire Daily Women's Health Policy Report, search the archives, or sign up for email delivery here. The Daily Women's Health Policy Report is a free service of the National Partnership for Women & Families, published by The Advisory Board Company.

© 2010 The Advisory Board Company. All rights reserved.

• Additional
• References
• Citations