by Lori Andrews

When Carolyn Savage learned she was pregnant through in vitro fertilization, she and her husband Sean rejoiced.  A few weeks later, though, they received devastating news.  The clinic had implanted the wrong embryo in her.  Rather than carrying their own genetic child, Carolyn was carrying the embryo of another couple.

While some women might have chosen to terminate a pregnancy, the Savages’ own moral beliefs precluded that option.  So instead, they selflessly went forward with the pregnancy, agreeing to turn the baby over after birth to the child’s genetic parents.  The one thing Carolyn Savage requested was a moment for her and Sean to be alone with the baby.  She said, “We want a moment to say hello and goodbye.”

In an interview on the Today Show, Carolyn’s absolute emotional pain comes through.  Whatever abstract legal ideas currently exist about the weight given to genetic bonds over gestational bonds, Carolyn had already begun a nine-month relationship with this child.  And, to make matters worse, she will not be able to carry another child.  If she and her husband want to procreate further, they will have to hire a surrogate mother to carry their remaining embryos.

The Savages say that their doctor told them that if they didn’t abort, the law would require her to give the child over to the other couple.  But, frankly, the law is not that clear.  In many jurisdictions, the child born to a woman is the legal child of that woman and her husband, no matter who the genetic father is.  There is even a Supreme Court case that holds that a married woman’s lover cannot sue for visitation rights to his child; the child belongs instead to the married couple.  (Michael H. v. Gerald D, 491 U.S. 110 (1989)).

In Yorkshire, United Kingdom, a mix-up at the fertility unit at Leeds General Infirmary resulted in mixed-race twins being born to a white couple.  Genetic tests revealed that the white woman was the genetic mother of the children, but that sperm a man other than her husband was used to fertilize her eggs.  The Queen’s Bench Division in that case found the sperm donor to be the legal father of the twins and woman to be the legal mother, but ruled that the twins would remain with the white couple.

The one case that required the gestational mother to turn over the child has been roundly criticized. In that case, a white woman in New York was implanted with both her own embryo and that of an African-American couple. Terminating the pregnancy, which she had a right to do, would mean aborting her own fetus as well as the one that the doctor had negligently implanted.  So she went forward with the pregnancy, thinking of the two children growing inside of her as unique siblings.  When the uterine brothers were born, the two couples entered into an agreement giving the African-American parents custody of their genetic child, with visitation by the gestational couple.  But then, the genetic parents turned around, went to court, and cut the gestational couple out entirely.  The woman who bore the child were treated no differently than if she had agreed to be a surrogate mother knowingly implanted with another couple’s embryo.

In contrast, full joint parenting was the legal solution in a California case.  Susan Buchweitz, a single woman, sought in vitro using donated egg and donated sperm.  Instead, she was implanted with the embryo of a married couple (created with sperm from husband and donor eggs) who were also undergoing in vitro fertilization.  Allegedly, the doctor knew within minutes of the procedure that there had been a mistake but Buchweitz was not informed until the child was ten months old.  She was sued by the genetic father for full custody of the child.  A California court declared Buchweitz the legal mother of the boy and the married man the legal father.  She must send the child to the genetic father’s house several days a week.

Bushweitz and other women have brought malpractice cases against the infertility clinics that have mixed up their sperm, eggs, or embryos.  Bushweitz received a million dollars in damages after giving birth to the married couple’s embryo.  When a Long Island, New York woman thought she was being inseminated with her dead husband’s sperm, she instead received a stranger’s sperm and gave birth to a child of another race.  She won a $400,000 settlement with the doctor and sperm bank.

On September 24, Carolyn Savage gave birth and gave up the baby to the genetic parents.  She and her husband released a statement saying, “Our family is going through a very difficult time and request privacy in the days ahead.”

The following day, a scandal at another clinic indicated the problem of embryo mix-ups may be more common than previously thought.  In most such situations around the world, a mix-up is discovered when a child of a different race is born.  Perhaps many more mix-ups have occurred, but were not noticed because the baby was the same race as the parents.  On September 25, a New Orleans hospital suspended operations at its in vitro fertilization because so many embryos had been mislabeled.

Money damages cannot adequately compensate the people who suffer through these infertility mishaps.  As a result of the mix-up in Yorkshire, the Government’s Chief Medical Officer commissioned an examination of Britain’s 90 IVF units, which resulted in the issuance of a 180-page report, entitled “Assisted Reproduction: a Safe, Sound Future.”  We need a similar close scrutiny of the protocols at in vitro fertilization clinics in the United States.