A Legal Puzzle: Can a Baby Have Three Biological Parents?

January 26, 2010
Editorial Observer
A Legal Puzzle: Can a Baby Have Three Biological Parents?
By ADAM COHEN
Scientists have created baby monkeys with a father and two mothers. Their goal was to eliminate birth defects, but increasing the number of biological parents beyond two 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.

Researchers at the Oregon National Primate Research Center were looking for ways to eliminate diseases that can be inherited through maternal DNA. They developed, as the magazine Nature reported last summer, a kind of swap in which defective DNA from the egg is removed and replaced with genetic material from another female’s egg. The researchers say the procedure is also likely to work on humans.

The result would be a baby with three biological parents — or “fractional parents,” as Adam Kolber, a professor at the University of San Diego School of Law, calls them.

He mentioned the idea over lunch at The Times, and it provided plenty of grist for debate among law junkies: Could a baby one day have 100 parents? Could anyone who contributes DNA claim visitation rights? How much DNA is enough? Can a child born outside the United States to foreigners who have DNA from an American citizen claim U.S. citizenship?

One reason these questions are so difficult to resolve definitively is that, even in simpler cases, the law of parenthood is badly muddled. That has been true since the 1980s saga of Baby M.

Mary Beth Whitehead had agreed to a payment of $10,000 to bear a child for William and Elizabeth Stern. The baby girl was conceived with Whitehead’s egg and Mr. Stern’s sperm. After the birth, Ms. Whitehead sued to keep the baby.

The New Jersey Supreme Court declared Ms. Whitehead “the legal mother” and “not to be penalized one iota because of the surrogate contract.” But it allowed the Sterns to raise the child.

In 1993, California came out the other way in a dispute between Crispina and Mark Calvert and a woman they had hired to carry a baby produced with their egg and sperm. All three courts that heard the case ruled for the Calverts, but each gave a different reason. The California Supreme Court finally decided that the person who intended to create the child and to raise it was the mother — in this case, Ms. Calvert.

There is confusion nationwide. Some states have laws expressly permitting surrogate parenthood; others make it illegal; and others have no law at all.

The problem, as Janet Dolgin, a Hofstra Law School professor, wrote in the Akron Law Review, is that legal thinking is deeply divided over how to judge what makes a family.

Since the 1960s, there has been a shift toward recognizing people’s intent in creating familial relationships, as reflected in the rise of no-fault divorce, prenuptial agreements and civil unions. But when it comes to deciding parenthood, courts remain deeply influenced by biology, even when it clashes with intent.

This concern is playing out now in A.G.R. v. D.R.H. & S.H., the biggest surrogacy case in New Jersey since Baby M’s. A woman served as a surrogate for her brother and his male spouse, giving birth to twins conceived with the spouse’s sperm and donor eggs. She signed a contract agreeing that her brother would adopt the children, but the trial court, saying it was following the Baby M decision, ruled that the spouse and the surrogate mother are the legal parents. The surrogate’s brother was given no parental rights.

When technology transforms a legal field — as the Internet is doing now for privacy, and digital music and video are doing for copyright — judges and legal thinkers have to decide what are the important values.

Parenthood cannot be reduced to a formula, but the law should move toward a greater recognition that the intent of the people involved is more important than the genes. That would provide useful guidance for courts to think about fractional parents — especially if the day comes when three or more people want to combine their DNA to create a baby.




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