excerpted Wrom: SWZIDREXCAXZOWCONEUQZAAFXISHJEXXIMQZUI
You My Child? The Role of Genetics and Race in Defining Relationships
after Reproductive Technological Mistakes, 5 DePaul Journal of Health
Care Law 15-56, 42-52 (Summer 2002) (208 Footnotes)
In instances involving unintended embryos, the intended parents, who
have supplied their own genetic material, do not receive their genetic
child. Instead, by mistake or intentionally, someone else receives their
embryo, and often has their child. These cases are especially difficult
because not only does one spouse lose a connection to a child, but also
because the family loses a connection to a child of the family. However,
this situation is also difficult on the "birth" family who
were expecting to have a child with a genetic link, rather than a
genetic stranger. However genetically separate, families where a child
without a genetic connection has been born into the family they consider
the child to be a part of their family. This section will discuss the
one reported case of people who received/had taken embryos accidentally,
and the consequences, especially when an embryo creates a child. The
instance discussed below the Fasano/Rogers case, involves four parents,
trying to determine who would deemed to be the legal parents of one
Here, two couples went to a fertility clinic and two children were
born; however, who the parents of one of the children were hotly
disputed. The facts in this case challenge ideas of parenthood in
general; specifically what it means to be the "mother" of a
child. The issue of race in determining parenthood is also raised.
Issues and Facts
The two couples involved in the embryo switch met in a Manhattan
fertility clinic, both seeking fertility treatment. According to the
Rogers' attorney, Rudolph Silas, the husbands talked in the fertility
clinic in December 1997: "Each was determined to have a child. . .
. They'd both been trying for years, and they were desperate." The
first couple involved, Debbie and Robert Rogers, a nurse and a high
school teacher from New Jersey, took years to save enough money for IVF.
In April 1998, Deborah Perry-Rogers and Robert Rogers began reproductive
assistance, including in vitro fertilization and embryo transfers.
However, the Rogers' embryos were implanted in Donna Fasano, along with
the Fasano's embryos, without the permission of the Rogerses or the
According to the court, both couples agree that on May 28, 1998 they
were notified of the implantation mistake and of the need for DNA and
amniocentesis tests. Not knowing what happened to their embryos led
Deborah Rogers "into a deep depression. She left her nursing job
and started undergoing counseling." According to the Fasano's
attorney, Ivan Tantleff, the fertility doctor "told them the
[Rogers'] embryos were supposed to be put in the garbage. She suggested
they terminate her pregnancy. . . . They were outraged."
Donna Fasano underwent an amniocentesis and DNA analysis, discovering
that one of the children she was pregnant with was not genetically
related to her. According to Donna Fasano, after discovering that one of
the twins would not be related to her, she consulted an attorney:
"I said, if I decided to give the child up that I would only give
it up to its genetic parents. And he had told me it would be virtually
impossible for them to find [their child]. And that if I didn't want the
child, to give him up for adoption. Now how could you not want the
child?" These statements show that Donna Fasano felt that the child
she was pregnant with was "her" child based on her need to
protect the potential child, but also her wish to prevent the genetic
parents from discovering the child, instead deciding to keep the child.
According to the court, the Fasanos took "no action regarding the
clinic's apparent error until the Rogerses, upon discovering that Ms.
Fasano had given birth to a child who could be theirs, located and
commenced an action against them."
On December 29, 1998, Donna Fasano gave birth to two male infants, of
two different races. One of the children is black, the genetic child of
the Rogerses, initially named Joseph Fasano, now Akeil Rogers. On March
12, 1999, when Akeil was two-and-a-half months old, the Rogerses filed
suit against the fertility doctor and the Fasanos to discover if one of
the twins was genetically related to them, seeking a declaratory
judgment against the Fasanos concerning the "rights, obligations
and relationships" of the Rogerses and the Fasanos to Akeil.
According to the court, the parties agree that the Fasanos were
"unresponsive" to the Rogerses' efforts to contact them,
though this issue was earlier disputed.
However the Rogerses discovered the Fasanos, the dismay of the
Fasanos fits within the structure they seemed to have made for
themselves - that the child who was not genetically related to them was
"their" child. The Fasanos seemed to consider the genetic
parents as intruders, people who at one time had a connection to their
child, but who were no longer connected, similar to adoptive parents
viewing birth parents of adoptive children.
In April 1999, when Akeil was three months old, DNA testing was
conducted, confirming that Akeil was the genetic child of the Rogerses.
During weeks of negotiating the custody of the child, he remained
with the Fasanos. According to David Cohen, an attorney for the Fasanos,
'There's just a tremendous amount of unnecessary heartache here. . . .
The Fasanos don't see him as someone else's black baby; they see him as
their baby. And the Rogerses have missed out on the first three months
of his life. ' The issues between the two arguing sets of parents were
that the Fasanos "wanted to maintain contact with the child and
they wanted it guaranteed in writing. . . . the Rogers would have to
agree to liberal visitation rights and acknowledge that Joseph has an
emotional and physical bond to Vincent and the Fasano's and that
maintaining that bond is in his best interest."
However, Deborah Rogers felt that "I just couldn't understand
why you have to negotiate for a child that was ours. He is and will
always will be our son and to have negotiate was an insult."
According to Deborah, "the Fasanos agreed to relinquish custody of
Akeil to the Rogerses only upon the execution of a written agreement,
which entitled the Fasanos to future visitation with Akeil. . . . and
that she felt compelled to sign the agreement in order to gain custody
of her son." Therefore the Rogers and the Fasanos have very
different ideas of what their relationship with this child would be.
Signed on April 29, 1999, when Akeil was four months old, the
agreement between the Rogerses and the Fasanos "contains a
visitation schedule providing for visits one full weekend per month, one
weekend day each month, one week each summer, and alternating holidays
[and] also contained a liquidated damages clause, providing that a
violation of the Fasanos' visitation rights under the agreement would
entitle them to $ 200,000."
According to attorney Ivan Tantleff, Donna Fasano made the decision
to give up the child "after a month of heart-wrenching and
soul-searching because she believes it is in the interest of the child
whom she loves very much"' A lawyer for the Fasanos, David Cohen,
said the custody exchange was "very emotional, very strained, very
difficult. This woman [ Mrs. Fasano] had carried the baby to term, and
had cared for him for four months."
Donna Fasano was described by attorney, Ivan Tantleff: "'The
Fasanos have reared, loved and cared for both children as their own. . .
She is doing this because she loves both boys and she is a victim here,
not the culprit. She doesn't look at them as white and black. She looks
at them as her sons. She is torn apart by this."' He continues by
stating that "'Mrs. Fasano was destroyed over this.' . . . 'She
holds the babies, she feeds the babies, she cares for them. But at the
same time, she doesn't want to deprive her son of being with his
biological mother."' Donna Fasano herself said that, "We both
want what's in the best interest of the child. We're giving him up
because we love him." She also said that "'[The fertility
doctor] may have given me two beautiful babies, but she destroyed their
lives." How exactly did the fertility doctor destroy the lives of
these children? By causing two children to be born as twins with no
genetic ties to each other?
Deborah Rogers was described by her attorney, Rudolph Silas, as
"very excited to hear the good news and overwhelmed after so many
failed efforts to conceive - delighted, overwhelmed and mostly in
tears.' Silas also stated that "" She had approached this at
the end of many years trying to conceive. It certainly raises the
possibility of a happy ending for all parties. At least happier than it
would have been if there had not been two children."
During the time between Akeil's birth on December 29, 1998 and May
10, 1999, when he was four-and-a-half months old when custody was turned
over, Deborah Rogers stated to the court that the Fasanos only permitted
her two brief visits with Akeil. Legally, the Rogerses received custody
of Akeil on July 16, 1999 when he was six-and-a-half months old.
Based on the visitation order, a court ordered oral "visitation
orders" over the next months. On January 14, 2000, the court
granted the Fasanos visitation with Akeil every other weekend. The
Rogerses challenged the court's January 14, 2000 visitation order and
the Fasanos appealed the order giving the Rogerses custody of the child.
New York Supreme Court (Appeals Court)
Under the traditional legal models of parentage, the Fasanos should
be viewed as Akeil's parents. Mrs. Fasano gave birth to Akeil, while
married to Mr. Fasano. Therefore, Akeil is part of the 'unitary family'
of the Fasanos. However, the court does not consider this view while
determining the rights of the various claiming parents.
In making a ruling concerning the Fasanos' visitation and custody
rights, the appeals court decides not to use either genetics or the
"best interests of the child" test to determine who Akeil
belongs with, and therefore, by default, who his parents are. The court
states that "it is simply inappropriate to render any determination
solely as a consequence of genetics" in convoluted cases such as
this one. The court states in dicta that if the Fasanos would have
sought custody, it would have used an intended parent standard to give
custody to the Rogerses; the Rogerses "who purposefully arranged
for their genetic material to be taken and used in order to attempt to
create their own child, whom they intended to rear."
The court states "that in these rather unique circumstances,
where the Rogerses' embryo was implanted in Donna Fasano by mistake, and
where the Fasanos knew of the error not long after it occurred, the
happenstance of the Fasanos' nominal parenthood over Akeil should have
been treated as a mistake to be corrected at soon as possible, before
the development of a parental relationship." Therefore, the Fasanos
cannot be considered to be "parents" of Akeil. The court also
responds to the argument that Akeil has bonded with his birth family,
"any bonding on the part of Akeil to his gestational mother and
her family was the direct result of the Fasanos' failure to take timely
action upon being informed of the clinic's admitted error. Defendants
cannot be permitted to purposefully act in such as way as to create a
bond, and then rely upon it for their assertion of rights to which they
would not otherwise be entitled." Therefore, even if the court had
considered the Fasanos to be parents under a care model for parenting,
they are not parents due to the court's view that they were involved in
wrongdoing. The actions of the Fasanos are thereby equated to
kidnappers, whose connections to a kidnapped child would not be
considered in determining the "best interests of the child"
even if the child had a loving relationship with the kidnappers. The
court does not consider that Akeil would not exist, but for Donna
Fasano's pregnancy, and her decision not to have an abortion when she
was told that she was pregnant with "someone else's child."
Therefore, the court terminated the visitation of the Fasanos with
Akeil, officially ending his relationship with the Fasanos on October
26, 2000, when he was a year-and-a-half old.
Court of Appeals (Supreme Court)
On May 8, 2001, New York State's highest court, the Court of Appeals,
denied hearing the appeal of the Fasanos from the Supreme Court ruling.
According to Bernard Clair, attorney for the Rogerses, 'My clients can
now enjoy raising their child without judicial interference.' The
Fasanos' attorneys said that he believed that 'All we ever asked was for
a court to decide the best interests of the child.'
Before custody of Akeil was transferred from the Fasanos to the
Rogerses, "George Annas, a professor of health law at Boston
University, said the custody question would have been quite clear if the
Fasanos had decided to fight it out: Every state but California
considers the birth mother, or 'gestational mother,' not the 'genetic
mother,' to be the legal mother." A headline from an article about
the switch in custody stated that "Baby in Mixup Returned to Real
Mom," as if the mix-up was as simple as parents accidentally
confusing their children for each other's.
After custody was transferred and visitation was being challenged,
Rudolph Silas, an attorney said the Rogerses are concerned that the
Fasanos would use the visits "'to assert their authority as
parents,"' considering that Mrs. Fasano continues to refer to
herself as his mother. Silas also said, 'Two mothers? That's not
acceptable. It's an invitation to psychological harm. . . . A child can
only have one mother.' Mrs. Fasano disagreed, stating that "We're
both his mother. We both love him," she said. "We want to be a
part of his life, forever."
According to the Rogerses attorney, Vernerd Clare, "There's no
such thing as parents by contract giving up their parental rights. They
can do it but it's never enforced in court. It can't be enforced in
court. The only recognition of giving up parental rights is through
Also, according to a New York Post article written after custody had
been turned over, but before a legal decision had been made concerning
visitation, Donna Fasano "spared herself the pain of a long,
emotional custody battle she ultimately would have lost when she turned
her switched-before-birth baby over to his genetic parents."
According to lawyer Bernard Clair, who has handled numerous custody
fights, "The law is going to come down on the side of the DNA. . .
.No matter what the heart says in this case, blood is thicker than a
medical mistake." He also stated that "The courts are not
going to support the concept of having two mothers of equal status. It's
too confusing for a child. . . . This is a terrible mistake, and I
applaud the parents having mightily attempted to work it out, but a
child can only have one mother."
According to another lawyer, Myrna Felder, "Although all this
was accidental, Mrs. Fasano essentially was a surrogate mother. By
voluntarily giving up custody, she saved herself a lot of trouble. . .
.The longer she would've waited to do so, the more heart-rending it
would have been for her and the child." She also stated that the
Rogers' parental rights "are absolute."
Another lawyer, William Beslow, stated that "There's no
biological tie there. In effect, the child has no blood relationship
with Mrs. Fasano or the brother," but because Fasano
"nourished the child and helped raise this child, allowing her some
contact is a fair request."
None of these commentators have considered the connections that the
Fasanos have made with Akeil or considered whether continuing a
relationship with the Fasanos would be to the benefit of Akeil. Though
considering the "best interests of the child" is often used in
custody cases of children between parents, none of these commentators
think to use it here. They treat Donna Fasano as a "mothering"
vessel for this baby, and once her however unwitting services are no
longer needed, neither is she, as a mother or as a parent.
Why do most of the commentators assume that Akeil will be 'returned'
to his genetic parents? Is it because the result seems 'right' somehow
or morally just, or does it not seem right that a Black child have white
parents? Or more insidiously, is it because allowing the Fasanos to keep
him would allow for the possibility of Black families raising a white
child, if a mistake were made?