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Race and Advanced Reproductive Technology Mistakes

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Vernellia R. Randall
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Raizel Liebler

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 child.

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 Fasanos.

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, stating that

"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 formal adoption."

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?

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Professor Vernellia R. Randall
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