Category Archives: Assisted Reproduction

Autism Spectrum Disorders in Children Conceived with Donor Sperm: How Should the Law Respond?

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Laurie Rosenow

In 2017 an Illinois mother of two children diagnosed with Autism Spectrum Disorder  (ASD) filed a complaint against a sperm bank alleging that the sperm donor used to conceive both of the children was not the man he claimed to be.[i]  Not only did Danielle Rizzo learn that donor H898 lied about his education, but he had failed to disclose a history of learning disabilities and other developmental issues.[ii]  Ms. Rizzo later discovered that she was not alone.  To date at least a dozen other children conceived with donor H898’s sperm have been diagnosed with Autism Spectrum Disorder.[iii]

In 2010 Ms. Rizzo purchased donor H898’s sperm from Idant Laboratories, who listed the donor as a 6’1 blonde-haired, blue-eyed college graduate with a master’s degree that had passed all of the lab’s health screenings.[iv]  The only thing that turned out to be true was his appearance.  Based on conversations with other women who had used donor H898 to conceive their children, some of whom had even met him, Rizzo learned that the donor had neither an undergraduate nor graduate degree as advertised and was diagnosed with ADHD, did not speak until age 3, and attended a special school for children with learning and emotional disabilities.[v]

When Rizzo’s children were 3 and 4 years old, she contacted geneticist and autism researcher Stephen Scherer, Director, Centre for Applied Genomics at The Hospital for Sick Children in Toronto and connected him with other families who had affected children from donor H898.  This group, known as an autism “cluster” offer a rare opportunity for scientist to study what causes and how to treat the disease.  Dr. Scherer cautioned that while his research to date is still preliminary, his hypothesis is that something in the donor’s DNA caused the children to develop ASD.[vi]

The word “autism” is derived from the Greek root for “self” and describes a wide range of interpersonal behaviors that include impaired communication and social interaction, repetitive behaviors, and limited interests.  These can be associated with psychiatric, neurological, physical, as well as intellectual disabilities that range from mild to severe.[vii]

Such a person may often appear removed from social interaction becoming an “isolated self.”[viii]  The Diagnostic and Statistical Manual of Mental Disorders (DSM-5) uses a broad definition of “autism spectrum disorder” that includes what were once distinct diagnostic disorders such as autistic disorder and Asperger syndrome.[ix]  ASD affects four times more males than females and symptoms usually manifest by the age of three.[x]\

The March of Dimes estimates that 6% of children born worldwide each year will have a serious birth defect that has a genetic basis.[xi]  The occurrence of ASD varies but is thought to be as high as 1% of the population.[xii]  Unlike diseases such as Cystic Fibrosis or Tay Sachs Disease for which carrier testing exists, the genetics of ASD is not yet well understood.  Geneticists such as Dr. Scherer suspect as many as 100 different genes may be associated with ASD.  Over 100 genetic disorders can exhibit features of ASD such as Rett Syndrome and Fragile X Syndrome, further complicating the diagnosis and understanding of ASD.  Dr. Scherer estimates that a subset of “high- impact” genes are involved in 5-20% of all ASD Diagnosis.[xiii]  Danielle Rizzo’s children were found by Dr. Scherer to carry two mutations associated with ASD.[xiv]

Despite the fact that genetic screening is available for many diseases, the United States does not require any genetic screening for gamete donors.  Under federal law, sperm banks in the United States are regulated by the Food and Drug Administration which requires donors of reproductive cells or tissue to undergo testing for certain enumerated communicable diseases such as HIV, Hepatitis B and C, chlamydia, and gonorrhea.[xv]  “Sexually intimate partners,” however, are exempted from such screening.[xvi]  The FDA also requires that an establishment that conducts donor screening must also review the donor’s medical records and social behavior for increased risk for communicable disease and conduct a physical exam of the donor.[xvii]  Retesting of donors is required after six months for any subsequent donations.[xviii]

Sperm banks in the U.S. are also not required to limit the number of semen samples sold or to keep track of live births resulting from their donors.  And no law prohibits a man from donating to as many sperm banks as he likes.  For example, a donor in Michigan who donated his semen twice a week between 1980 and 1994 had fathered at least 400 children by 2010.[xix]  A mother of a donor child was able to trace at least 150 half-siblings to her son using web-based registries.[xx]  Danielle Rizzo discovered that her donor, H898, was still being sold by at least four sperm banks, despite receiving calls and letters warning them of her experience.[xxi]  With the popularity of DNA home testing kits such as 23andMe and Ancestry.com as well as voluntary donor registries such as Donor Sibling Registry, even more children from donors like H898 are likely to be discovered.

In addition to the FDA rules mandating screening for communicable disease, the American Society for Reproductive Medicine (“ASRM”) advises sperm banks only include donors who are between the ages of 18-40 and provide a psychological evaluation and counseling to prospective donors performed by a mental health professional. [xxii]   The industry group recommends genetic testing for cystic fibrosis of all donors and other genetic testing that is indicated by the donor’s ethnic background.  The group does not recommend a chromosomal analysis of all donors.

The American College of Obstetricians and Gynecologists (“ACOG”) as well as ASRM recommend limiting the number of children born to a single gamete donor. [xxiii]  While populations will vary, to limit the possibility of consanguinity, AGOG recommends a maximum of 25 children born from a single donor per population of 800,000.[xxiv]  The challenge in setting limits on the number of children born to a sperm donor lies in obtaining the information and keeping updated records.  Many women purchase sperm from banks across the country and even the globe with no legal incentive to inform a sperm bank of any resulting children or their health status.  Sperm banks are also unlikely to share information with donors regarding the number of their semen vials sold let alone any children that result.

Despite the lack of a federal mandate, most sperm banks voluntarily screen for genetic defects.[xxv]  However, like ASD, many diseases that are thought to have a hereditary component cannot be tested for and clinicians and patients are forced to rely on the donor to give truthful and accurate medical and family histories as well as the banks to accurately document such information.

Like Danielle Rizzo, another mother of two children diagnosed with ASD conceived with donor H898’s sperm filed a lawsuit against Idant Labs including claims for fraud, negligent misrepresentation, strict products liability, false advertising, deceptive business practices, battery, and negligence.[xxvi]  Danielle Rizzo settled her claims against Idant’s parent company Daxor Co. in 2017 for $250,000 though she alleges it is a fraction of the estimated $7 million in care that will be needed for both of her children.[xxvii]

Similar lawsuits were filed against Xytex, a sperm bank based in Atlanta, Georgia, regarding sperm it sold from Donor #9623 named Chris Aggeles who was advertised as having a genius level IQ of 160 pursing a PhD in neuroscience engineering.[xxviii]   In fact, the donor at the time was a high school drop out with a history of mental disorders including schizophrenia, bipolar disorder, and narcissistic personality disorder and a criminal record.[xxix]  He had been a donor at Xytex for fourteen years. The plaintiffs claimed the company did not verify any of the information the donor had given them but Xytex claims it discloses to prospective clients that any representations by the donor were his alone.[xxx]  Recently nine families with 13 children conceived with sperm from Aggeles settled their claims for wrongful birth, failure to investigate, and fraud.[xxxi]

Despite monetary damages awarded in settlement of these lawsuits, a case filed in the Third Circuit against Idant was dismissed because the court found the argument of liability based on quality of sperm to be indistinguishable from New York’s prohibition against wrongful life claims.[xxxii]  “The difficulty B.D. now faces and will face are surely tragic, but New York law, which controls here, states that she ‘like any other [child], does not have a protected right to be born free of genetic defects.’”  Idant in this case had sold the sperm of Donor G738 to a mother in Pennsylvania whose daughter was diagnosed as a Fragile X carrier.

Both mothers of the children diagnosed with ASD from donor H898’s sperm left professional careers to care for their children and alleged severe financial losses as a result.[xxxiii]  Donor H898, however, was not a party to the suits nor were any other establishments selling vials of his semen and therefore not bound to any settlement agreements reached which might restrict future donations.  Since lawsuits only offer the possibility of damages and other relief after an injury has occurred and some jurisdictions, like New York, will not even consider claims related to defective sperm, policies that focus on avoiding harm prior to insemination should be considered.

Because screening is not available for many diseases that likely have a strong genetic component, the family and medical history of donors becomes critical as a secondary method of screening.  Sperm banks could require signed, sworn affidavits from donors attesting to the truthfulness and accuracy of the information they provide to encourage more accurate reporting by donors.  Many banks claim they run criminal background checks on donors but they could also verify claims of employment and education with a simple phone call.  Laws mandating a cap on the number of vials an individual may donate make sense in light of the vast numbers of children possibly being conceived from popular donors.  It may also be time for sperm banks in the U.S. to follow the example of the UK which allows children conceived from donor gametes to obtain medical information from donors at age 16 and the full name, date of birth, and address of their donors at age 18.[xxxiv]  In the age of DNA testing, social media, and cyber stalking, anonymity may be unrealistic.  If sperm banks do not tighten their internal policies for screening donors, more avoidable tragedies are likely to occur.

Laurie Rosenow in an attorney and former Senior Fellow at the Institute for Science, Law & Technology.

 

[i] Rizzo v. Idant Labs, Case No. 17-cv-00998, N.D. Ill. Jan 31, 2017.

[ii] Id.  See also, Arianna Eunjung Cha, “The Children of Donor H898,” Wash. Post, Sept. 14, 2019.

[iii] Id.  See also, Doe v. Idant Labs, complaint filed NY State Supreme Court, Civil Branch, June 2016.

[iv] Cha, “The Children of Donor H898.”

[v] Id.

[vi] Id.  Dr. Scherer also noted, however, that the donor could have other biological children who are not affected.

[vii] Yuen, R.K.C. et al, “Whole Genome Sequencing Resource Identifies 18 New Candidate Genes for Autism Spectrum Disorder,”  20 Nat. Neurosci., 602-611 (2017).

[viii] “What Does the Word ‘Autism’ Mean? WebMD, available at https://www.webmd.com/brain/autism/what-does-autism-mean#1.

[ix] Autism Spectrum Disorder, Diagnostic Criteria, Centers for Disease Control, available at https://www.cdc.gov/ncbddd/autism/hcp-dsm.html.

[x] Yuen et al, “Whole Genome Sequencing Resource Identifies 18 New Candidate Genes for Autism Spectrum Disorder.”  For examples of common behaviors found in children with ASD, see National Institute of Mental Health. Autism Spectrum Disorder Overview, available at https://www.nimh.nih.gov/health/topics/autism-spectrum-disorders-asd/index.shtml.

[xi] March of Dimes Global Report on Birth Defects 2006, available at https://www.marchofdimes.org/global-report-on-birth-defects-the-hidden-toll-of-dying-and-disabled-children-full-report.pdf

[xii] Anney, Richard et al, “A Genome-wide Scan for Common Alleles Affecting Risk for Autism,” Hum. Mol. Gen. Vol. 19, No. 20, p. 4072-4082 (2010).

[xiii] Cha, “The Children of Donor H898.”

[xiv] The genetic mutations found in her sons were MBD1 and SHANK1, Cha, “The Children of Donor H898,” Washington Post, Sept. 14, 2019.

[xv] 21 C.F.R. Sec. 1271.75.

[xvi] 21 C.F.R. Sec. 1271.90.

[xvii] 21 C.F.R. Sec. 1271.50 (2006).  See also, https://www.fda.gov/vaccines-blood-biologics/safety-availability-biologics/what-you-should-know-reproductive-tissue-donation.  Donor screening consists of reviewing the donor’s relevant medical records for risk factors for, and clinical evidence of, relevant communicable disease agents and diseases.  These records include a current donor medical history interview to determine medical history and relevant social behavior, a current physical examination, and treatments related to medical conditions that may suggest the donor is at increased risk for a relevant communicable disease.

[xviii] 21 C.F.R. Sec. 1271.85 (d).

[xix] Newsweek Staff, “Genetic Lessons from a Prolific Sperm Donor,” Newsweek, Dec. 15, 2009, also available at https://www.newsweek.com/genetic-lessons-prolific-sperm-donor-75467.  See also, Hayes, Daniel, “9 Sperm Donors Whose Kids could Populate a Small Town,” Thought Catalog, Jan. 13, 2016, available at https://thoughtcatalog.com/daniel-hayes/2016/01/9-sperm-donors-whose-kids-could-populate-a-small-town/.

[xx] Meraz, Jacqueline, “One Sperm Donor; 150 Offspring,” New York Times, Sept. 5, 2011, also available at https://www.nytimes.com/2011/09/06/health/06donor.html.

[xxi] Cha, “The Children of Donor H898.”

[xxii] “Recommendations for Gamete and Embryo Donation,” 99 Fertility and Sterility 1, p.47-62,  Jan. 2013,  available at, https://www.fertstert.org/article/S0015-0282(12)02256-X/fulltext#sec1.  See also, https://www.reproductivefacts.org/news-and-publications/patient-fact-sheets-and-booklets/documents/fact-sheets-and-info-booklets/third-party-reproduction-sperm-egg-and-embryo-donation-and-surrogacy/

[xxiii] ACOG Committee Opinion: Genetic Screening of Gamete Donors, Int’l Jour. Gyn & Obst. 60 (1998) 190-192, available at https://obgyn.onlinelibrary.wiley.com/doi/abs/10.1016/S0020-7292%2897%2990229-0

[xxiv] Id.

[xxv] See, e.g. California Cryobank, one the of the largest sperm banks in the United States: https://www.cryobank.com/services/genetic-counseling/donor-screening/

[xxvi] Doe v. Idant Labs, complaint filed N.Y. State Supreme Ct., June 2016, available at https://www.donorsiblingregistry.com/sites/default/files/Rizzo%20complaint.pdf.

[xxvii] Cha, Ariana Eunjung, “Danielle Rizzo’s Donor-conceived Sons Both Have Autism.  Should Someone be Held Responsible?” Wash. Post, Oct. 3, 2019, available at https://www.washingtonpost.com/health/2019/10/03/danielle-rizzos-sons-donor-conceived-sons-both-have-autism-should-someone-be-held-responsible/

[xxviii] Johnson, Joe, “UGA Employee at Center of Sperm Bank Fraud,” Athens Banner-Herald, Sept. 3, 2016.

[xxix] Id.  See also, Van Dusen, Christine, “A Georgia Sperm Bank, a Troubled Donor, and the Secretive Business of Babymaking,” Atlanta Magazine (March 2018), also available at https://www.atlantamagazine.com/great-reads/georgia-sperm-bank-troubled-donor-secretive-business-babymaking/ (Feb. 13, 2018).

[xxx] Djoulakian, Hasmik, “The “Outing” of Sperm Donor 9623,” Biopolitical Times, June 30, 2016, available at https://www.geneticsandsociety.org/biopolitical-times/outing-sperm-donor-9623.  See also, Johnson, Joe, “UGA Employee at Center of Sperm Bank Fraud,” Athens Banner-Herald, Sept. 3, 2016.

[xxxi] Hersh & Hersh law firm, “Major Settlement of Sperm Bank/Deceptive Business Practice Case,” available at https://hershlaw.com/success-2/.  See also, Khandaker, Tamara, “Lawsuit Alleges Sperm Bank’s Genius Donor Was Actually a Schizophrenic Ex-Con,” Vice News, Apr. 15 2016, available at https://www.vice.com/en_us/article/neykmx/lawsuit-alleges-sperm-banks-genius-donor-was-actually-a-schizophrenic-ex-con

[xxxii] D.D. v. Idant Labs, (3rd Cir. 2010).

[xxxiii] Doe v. Idant Labs, Complaint; Cha, “The Children of Donor H898.”  See also, Cha, “Danielle Rizzo’s Donor-conceived Sons Both Have Autism.”

[xxxiv] Human Fertilitisation and Embryology Authority, “Rules Around Releasing Donor Information,” available at https://www.hfea.gov.uk/donation/donors/rules-around-releasing-donor-information/.

The Cold Truth, Revisited: Egg Freezing as an Employee Benefit

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By Nadia Daneshvar

Faced with attracting women to join their predominantly male workforce, Facebook decided to offer an usual benefit: up to $20,000 in coverage toward egg freezing procedure and storage costs for female employees. Apple similarly has plans to offer both full- and part-time female employees the same coverage starting in January 2015. While many say the companies have taken a step toward gender equality in the workplace, others see it as a step in the wrong direction.

The American Society for Reproductive Medicine’s recent revocation of egg freezing’s “experimental” status has caused an increase in the number of women opting to freeze their eggs for social or nonmedical reasons before they reach “advanced maternal ages.” But egg freezing does not come without risks and stigma. Nearly all stages involve risks (e.g., hormone injections and extraction, transfer, and gestation) and after two rounds of egg retrieval, the chance of live birth is just over 20% if eggs are harvested at or before age 25 and decreases with age: only 16% of women who underwent two rounds of egg freezing at age 30 will have live births. Other considerations include the increased risks associated with pregnancy in older ages. Continue reading →

The Cold Truth Behind Employer-Covered Social Egg Freezing

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Nadia ISLAT

By Nadia Daneshvar

Salary. Health insurance. Long-term disability insurance. Flex benefits. 401(k)…and “baby insurance”? With the advent of egg freezing, women can have children practically whenever they want and with whomever they want, by simply having their viable eggs frozen while they’re still young. Imagine if your employer decided to cover the cost of preserving some of your eggs for you as a part of its benefits package. Some law firms are doing just that for their female employees. Testing, monitoring, and retrieval of eggs can cost anywhere from $6,500 to $12,850, and annual storage fees of retrieved eggs are typically between $400 and $600. But the costs don’t stop there. When a woman decides she is ready to use her eggs, they must be thawed, fertilized, and transferred to a woman’s uterus, which costs anywhere from $4,500 to $7,000. At Specialists in Reproductive Medicine and Surgery, a woman could pay a total of $21,558 if the eggs are stored for only one year. These procedures are rarely covered by health insurance and vary from clinic to clinic, making employer-covered egg freezing a financially enticing option for many women. After all, one-fifth of American women between ages 40 and 44 do not have children, among whom half regret their status wishing they had children. Egg freezing is thought to offer the option to younger women to avoid such future regrets.

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Egg Donation is Made to Look Easy, but Questions and Health Risk Remain

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Ryann Summers_1

By Ryann Summers

Recently, a former co-worker and his romantic partner sent me a text message that left me reeling.

It essentially read: Hey, can I have ur eggs? Thx.

Few couples would be better equipped to raise a well-loved child than these two men, and I fully supported their decision to start a family.  But I wondered how we had arrived at the point where this request has become so casual that it can be communicated in fewer than 140 characters.  At least take me out to dinner.

I don’t fault my co-worker; his question mirrors how the issue is presented in our culture.  As a woman in her early 20s, I am bombarded by advertisements seeking my eggs.

Recently when I was riding the T in Boston, I found myself staring at the face of a smiling baby, and a dollar amount.  It seems, well, easy.

Egg donation payments range anywhere from $5,000 to $10,000; some solicitations offer amounts as high as $20,000, or even $100,000, for donors with specific characteristics.  I could definitely benefit from thousands of dollars, and hey, I probably have eggs to spare, right?

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Doe v. Hamburg: Are FDA Regulations to Protect Sperm Donor Recipients and Their Offspring from Disease Unfairly Burdensome?

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Laurie Rosenowby Laurie Rosenow

A woman residing in Oakland, CA recently filed a lawsuit against the Food and Drug Administration and Health and Human Services claiming the FDA regulations established to prevent the spread of communicable diseases create an unfair barrier to women who wish to use donor sperm of a known donor of her choice.

The six count lawsuit filed in the U.S. District Court for the Northern District of California alleges that the regulations contained in 21 C.F.R. 2171 infringe on Jane Doe’s, other similarly situated women’s, and individual male donors’ rights to privacy, bodily integrity and autonomy, procreative liberty, and due process.  These regulations require “directed” semen donors (a donor known by the recipient prior to donation) to undergo testing at the time of donation for various communicable disease such as HIV, hepatitis B and C, Creutzfeld-Jacob disease, human t-lymphotropic virus type I and II, chlamydia, and gonorrhea.  However, screening is not required for “sexually intimate partners” of a recipient.  Doe, who is in a same-sex relationship, does not wish to conceive “naturally” and prefers to use an uncompensated known donor outside of a medical setting.

The complaint further claims that treating sperm donors who help women become pregnant via artificial insemination differently from men who impregnate women using “natural” insemination (i.e. sexual intercourse) violates the Equal Protection Clause and creates undue burden and expense by requiring private, individual, uncompensated donors to comply with registration, screening, testing, and record-keeping under the FDA Regulations.

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Should Payments to Egg Donors Be Limited?

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Jake Meyer by Jake Meyer

The New York Times published a May 10, 2010 article about payments to women who donate their eggs titled “Payment Offers to Egg Donors Prompt Scrutiny,” and also asked the question of The New York Times readers Should Egg Donors Be Paid?  The process of donating eggs is time consuming, involves discomfort, and carries some physical risks to the donor, so do you compensate the donor?  Donation can cause abdominal swelling, mood swings, hot flashes and ovarian hyperstimulation syndrome, which can cause bloating, abdominal pain, and in some cases, blood clots, kidney failure, and other life-threatening ailments.  And if you do compensate an egg donor, how much do you pay an egg donor? 

The current practice in the U.S. is to allow egg donors to be paid.  The American Society for Reproductive Medicine has set guidelines for payments to egg donors.  The guidelines require justifications for payments over $5,000 and set a maximum compensation at $10,000 and also do not allow for the higher payments for specific traits.  However, advertisers are ignoring these guidelines.

A study by Dr. Aaron Levine at the Georgia Institute of Technology found that out of a sampling of 100 ads from 63 different college campuses, over a quarter of those ads exceeded the $10,000 maximum compensation guidelines set by the American Society for Reproductive Medicine.  The ads also offered higher average payments at schools with higher average SAT scores – ads averaged $2000 more for every 100 point difference in the average SAT scores.  Ads in the newspapers at Yale, Princeton, and Harvard offered $35,000 and an ad in the newspaper at Brown offered $50,000.

Are these guidelines necessary?  Should couples looking to reproduce be allowed to pay whatever price they wish for a donor egg?  Critics fear that young women will see the amount of money offered for egg donation and may overlook or not understand the potential physical and psychological risks.  Should the offers for donated eggs allowed to be higher for specific attributes?  Is an offer asking to pay $50,000 for the eggs of a donor who is tall, athletic, Ivy League educated, and with a score of at least 1400 of 1600 on the SAT appropriate?  Or are offers like this more akin to eugenics, where couples using donated eggs to conceive are paying higher premiums and selectively breeding certain traits.  The ASRM guidelines seem reasonable when the risks that an egg donor undertakes are weighed against the concern that women will donate against their best interests because of a large pay day.  Setting a limit on what an egg donor can be paid allows for an egg donor to be adequately compensated, and also addresses the issue eugenics-like trait selection.  Efforts should be made to ensure that these guidelines are more strictly followed.

Irish Supreme Court Says Sperm Donor is Legal Dad: Will the U.S. Follow Suit?

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Lori Andrews by Lori Andrews

Last week, the Supreme Court of Ireland stunned the reproductive technology community by holding that a sperm donor had legal rights as a father.  Four of the five justices wrote separate opinions as to why an agreement in advance not to be a donor did not prevent the sperm donor from asserting parental rights.

The case, J. McD v. PL and BM, involved a Lesbian couple who chose a friend as a sperm donor.  He signed an agreement stating that the female couple were the parents and he would have a role akin to that of a "favourite uncle."  When he sought a greater relationship, a lower court ruled against him.  But the Supreme Court of Ireland held that he could assert his legal rights. 

The reasoning used by the various justices was sweeping and could be applied to any situation of donor insemination, not just those involving nontraditional family structures.  Chief Justice Murray, for example, seemed to compare the sperm donor, McD., to a biological mother who gives her child up for adoption. Murray indicated that the sperm donor’s consent to relinquish parental rights before the child is born is suspect. Murray said that a sperm donor, "when faced after birth with the reality of a child… may, quite forseeably, experience strong natural feelings of parental empathy and identity which may overcome previous perceptions…arrived at in the more abstract situation before the child was even conceived….  [A] change of heart may be, as it was in this case, an event which raises issues as to whether in the interests of the child access or guardianship ought to be granted to the father."

In the United States, as in Ireland, the biological parents of a child cannot create a private contract which denies either parent's rights or responsibilities.  To get around the legal precedent that private agreements are non-binding, most American states have adopted sperm donor statutes, generally addressed to married couples, which hold that the consenting husband of the woman who is inseminated is the legal father.  There are several loopholes in the American jurisprudence, however.  A handful of states do not have statutes at all.  Some of the statutes only say the husband is the father and the donor is not, but others just say that the husband is the father without specifically cutting off the donor's parental rights.  Some terminate the donor’s parental rights only when a married woman is inseminated, not a single woman.  So, litigation in which a sperm donor asserts his rights is still a possibility in some states.  In the absence of specific statutory guidance that is directly on point, an American court, like the Irish one, would probably turn to the "best interest of the child" standard. 

And changing cultural norms might convince an American court that children have a right to learn the identity of their biological fathers, the sperm donors.  In the Irish decision, Justice Fennelly pointed out, "Scientific advances have made us aware that our unique genetic make-up derives from two independent but equally unique sources of genetic material. That is the aspect of the welfare of the child which arises."

So, ironically, even at the same time that reproductive technology is making it unnecessary for parents to have a biological connection to their child, genetic technology is telling children that biology matters.  And courts may be willing to grant a sperm donor rights, not just for the benefit of the donor, but for the benefit of the child. 

From Rabbits to Humans: Transplanting Wombs

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SarahBlennerBy Sarah Blenner, JD, MPH

In 2000, the first human womb transplant was attempted in Saudi Arabia.  The transplant failed when the 26 year old woman developed a blood clot and the transplanted uterus had to be removed.  But now scientists believe that they are close to perfecting a reproductive technology that could solve some women’s infertility: transplanting a womb into a woman who lacks a functioning uterus. 

Infertility affects one in six women.  Some women are unable to get pregnant because they either do not have a uterus or do not have a properly functioning uterus.  At least 15,000 women in Britain alone are infertile because of a condition associated with uterine function.  A woman may lack a uterus because she has had a hysterectomy or may not have a properly functioning uterus because of a medical condition, such as intrauterine adhesions, also known as Asherman’s syndrome.  Currently, if women without a properly functioning uterus wish to have children, they must either adopt or turn to surrogacy.  Despite the availability of these alternatives, some women want to bear their own children and are willing to undergo surgery to achieve pregnancy. 

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Motherhood Divided: What Should Happen When a Clinic Gives a Woman the Wrong Embryo?

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Lori Andrews 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.

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“Is That Your Grandmother? No, That’s My Mom!”

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Marilyn BoskeyGUEST BLOGGER Marilyn Boskey

In 2006, Maria del Carmen Bousada received in vitro fertilization (IVF) from the Pacific Fertility Center in Los Angeles, CA.  At age 66, she was well above the 55-year-old age limit.  Bousada claimed that they did not ask her for any identification, and she simply told them she was 55.  With the birth of her twin sons in December 2006, she became the oldest new mom, according to the Guinness Book of World Records (although that record now belongs to a 70-year-old-woman in India).  Whenever she was criticized for being too old to have children, Bousada would cite her own mother’s 101-year life span.  Unfortunately, soon after the birth of her sons, she was diagnosed with a tumor.  Bousada died this week at the age of 69–her twin boys are only 2.

This is only the latest in a string of news stories that paint IVF in a negative light in recent months.  The birth of octuplets to Nadya Suleman and the recent divorce proceedings between Jon and Kate Gosselin, who used IVF twice to give birth to twins and sextuplets, have caused many to question the regulation of IVF as well as the psychological and physical effects on children. An article in The New York Times provides data that 70% of survey respondents want tougher standards on IVF, and 50% believe that women over the age of 45 are unfit to become mothers.  Although assisted reproduction has allowed many young families the opportunity to have children when they cannot naturally, it has also lead to questions such as the one Maria Bousada’s death creates.  How old is too old to be a new mom?

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