Genes, Parents, and Assisted Reproductive Technologies: Arts, Mistakes, Sex, Race, & (and) Law


GENES, PARENTS, AND ASSISTED
REPRODUCTIVE TECHNOLOGIES: ARTs,
MISTAKES, SEX, RACE, & LAW+

LESLIE BENDER:

I. INTRODUCTION
A true story: two infertile couples, Donna and Richard Fasano of

Staten Island, New York,' and Deborah Perry-Rogers and Robert Rogers of
Teaneck, New Jersey, went to the In Vitro Fertility Center of New York,
an in vitro fertilization [hereinafter IVF] clinic in Manhattan, for treatment
on the same day in April 1998. Both couples were undergoing IVF

© 2003, Leslie Bender. All rights reserved.

* Associate Dean and Professor of Law and Women's Studies, Syracuse

University College of Law. My understandings about families and parenthood have been
deepened by the newest additions to my family: S.N. Sangmpam, Nana Sang Bender, and
Alida Sang Bender. I am very blessed. My other children, Benjamin Sailer and Rachael
Sailer Bender, and my son-in-law, Todd Nicodemus, continue to multiply my joy. My
beloved husband, Peter A. Sandwall, who died of cancer in 1995, is ever-present in my
family. The wonder and love in my life today are a testament to the gifts he gave me during
his all-too-short life.

I am grateful for the help from my research assistants, Mary Beth Williams,
Syracuse University College of Law, Class of 2002, and Ilyssa Kaufman, Class of 2003, and
the able assistance of my administrative assistant, Mary E. Ippolito. Rachel Winard,
Columbia Law School, Class of 2004, provided helpful commentary on this essay during the
editorial process, triggering me to restructure part of my argument. Several of my friends and
colleagues have generously read and critiqued earlier versions of this essay: Daan Braveman,
Deborah Kenn, Sarah Ramsey, and S.N. Sangmpam. Sang has lived with these arguments for
the two years that it took this essay to grow from conception to print, and his insights and
thoughtfulness are interwoven throughout. Paris Daskalakis, Syracuse University College of
Law, Class of 2001, helped me out by copying the record of the Perry-Rogers v. Fasano case
when he was in New York City over a winter break. The law firm of Tantleff, Cohen &
Tantleff, P.C. helped my research by sending me copies of the briefs and complaints in this
case. Syracuse University College of Law supported this work with a summer grant, and our
outstanding faculty gave me thoughtful feedback when I presented the arguments at a
workshop in April 2001. I also received helpful feedback from the LeMoyne College
community when I presented these ideas as the 2002 Beatrice Robinson Memorial Lecture
for Women's History Month.

1 Perry-Rogers v. Fasano, 715 N.Y.S.2d 19 (App. Div. 2000). Although the
opinion mentions Donna's first name, it never identifies Mr. Fasano's first name. I gathered
this other information first from newspaper articles and then from the record in the case.
Michael Grunwald, In Vitro, in Error, and Now, in Court; White Mother Given Black
Couple's Embryo Will Give One 'Twin' Back, Wash. Post, Mar. 31, 1999, at AOl.

2 1 first discovered their hometown in Samuel Maull, Teaneck Parents Opposing

'Twin' Visits, Rec. N. N.J., Feb. 4, 2000, at A06.



Columbia Journal of Gender and Law [Vol. 12:1

procedures that created pre-embryos3 ("test tube babies") with hopes of
giving birth to their own babies. Due to a clinical error that caused a pre-
embryo mix-up that day,4 Donna Fasano was mistakenly impregnated with
as many as six of the Rogerses' pre-embryos along with at least one of hers
and her husband's pre-embryos' Deborah Perry-Rogers was also implanted
with pre-embryos on April 24, 1998, but all those pre-embryos were hers
and her husband's. 6 Unfortunately, Perry-Rogers's pre-embryos did not
implant in her womb . A few weeks later, on May 28, 1998, after Donna
Fasano knew she was pregnant with twins, the clinic notified both couples
of the mistake. The Rogerses attempted to learn who had their pre-embryos,
but were unable to find out. The Fasanos, on the other hand, did not take
any affirmative steps to identify either of their embryos' genetic parents
during Mrs. Fasano's pregnancy or for several months after the children's
birth.'

On December 29, 1998, Mrs. Fasano gave birth to two boys, one of
whom is European-American like the Fasano couple and the other who is
African-American, like the Rogerses. The Fasanos were content to raise
both sons, whom they named Vincent and Joseph. However, when the
Rogerses learned about the Fasanos' birth by "luck," 9 they insisted on
having genetic tests done. Those tests revealed that the African-American

3 These fertilized cells can also be referred to as zygotes, pre-zygotes, or pre-
embryos, but for conceptual clarity in this paper (rather than scientific accuracy), I will call
them embryos and pre-embryos interchangeably.

4 Both couples have filed malpractice claims against the clinic operator, Dr. Lillian
Nash, and the embryologist, Dr. Michael Obasaju. Bob Groves, Lawyers Argue Over
Visitation in Case of Misplaced Embryo, Rec. N. N.J., Jun. 10, 2000, at A03. The Appellate
Division ruled that the Rogerses' malpractice lawsuit for emotional harm damages may
continue despite the absence of physical injury. Perry-Rogers v. Obasaiu, 282 A.D.2d 231
(N.Y. App. Div. 2001); Fasano v. Nash, 282 A.D.2d 277 (N.Y. App. Div. 2001). The
original action in Perry-Rogers v. Fasano was filed under the index number for the
malpractice claim, Perry-Rogers v. Nash, (N.Y. Sup. Ct. 1999) (No. 601212/99).

5 Complaint at 47, 66, and 81, Perry-Rogers v. Fasano (N.Y. Sup. Ct. 1999)
(No. 601212/99).

6 1d. 65.

7 The Rogerses' complaint against the clinic alleges that once the clinic realized
the mistake of implanting Donna Fasano with their embryos, the clinic personnel quickly got
a second batch of pre-embryos together to implant in Deborah Perry-Rogers, but those pre-
embryos were of lesser quality. Id. 48.

8 Brief for Appellant-Rogers at 3, Perry-Rogers v. Fasano, 276 A.D.2d 67 (N.Y.

App. Div. 2000) (No. 601218/99) (citing Record on Appeal, at 50-51 and 107).

9 1 assume this "luck" was either a breach of confidentiality by someone at the IVF
clinic or their following up on media reports about a mother who gave birth to twins of
different races. I have found no reports that explain how the Rogerses actually came to learn
who gave birth to their genetic child.



Genes, Parents, and ARTs

boy was their genetic child.1° The Rogerses immediately sued for a
declaration of parentage and custody. They also renamed the boy Akeil
Richard Rogers. When genetic tests revealed that Joseph/Akeil 1 was the
genetic child of the Rogerses, the Fasanos agreed to relinquish custody to
the Rogerses, if the Rogerses would execute a written agreement granting
them liberal visitation. The agreement, signed on April 29, 1999, gave the
Rogerses custody, but contained a carefully delineated visitation schedule
and provided for $200,000 in liquidated damages if the Rogerses violated
the visitation agreement. Pursuant to that agreement, on May 5, 1999, the
Fasanos signed affidavits acknowledging that the Rogerses were
Joseph/Akeil's genetic parents, consenting to the entry of a final order of
custody in the Rogerses' favor, and agreeing to change Joseph/Akeil's birth
certificate. On May 10, 1999, when the baby was four-and-a-half months
old, the Fasanos turned the infant over to the Rogerses. The next day the
Rogerses complied with the agreement by discontinuing with prejudice the
action against the Fasanos (although they retained their action against the
IVF clinic).

Had the story ended here, we probably could have agreed that the
best was made of a bad situation. However, two weeks later the Rogerses
were back in court seeking a resolution that was different from the one to
which the parties had agreed. On May 25, 1999, the Rogerses sued the
Fasanos by petitioning the court for a declaratory judgment about
Akeil/Joseph's parentage, seeking sole and exclusive custody, and making
no mention of the visitation agreement that was signed. After several stages
of legal wrangling and a full evidentiary hearing, the court issued a January
14, 2000 order allowing the Fasanos substantial visitation. It is from this
order that the Rogerses appealed, seeking to void the visitation agreement
entirely. The appeals court rendered the startling decision that the Fasanos
had no standing to claim visitation rights to Joseph/Akeil; they had no
parental right to even ask the court to enforce the visitation agreement. The
troubling resolution of this case by an intermediate appellate court of New
York prompted my reflections in this essay.

This essay explores some of the legal policy questions that arise
when strangers' lives become inextricably linked because of assisted
reproductive technologies (ARTs) 12 gone awry. At the intersection of law,

10 Genetic tests revealed that Joseph/Akeil was 99.97% certain the genetic child of

Deborah Perry-Rogers and 99.96% certain the genetic child of Robert Rogers. Complaint at
1 60, Perry-Rogers v. Fasano (N.Y. Sup. Ct. 1999) (No. 601212/99).

' Throughout this article, I call the baby Joseph/Akeil or Akeil/Joseph so as not to

privilege one set of parents by using solely their name for the boy.
12 ARTs include artificial insemination by donor (AID or DI), in vitro fertilization

(IVF), embryo transfer, cryopreserved (frozen) embryos and gametes, gamete intrafallopian
transfer (GIFT), zygote intrafallopian transfer (ZIFT), preimplantation genetic diagnosis
(PGD), intracytoplasmic sperm injection (ICSI), gestational and traditional surrogacy,
genetic enhancement or engineering, cloning, and more. These technologies, as a group, go

2003]



Columbia Journal of Gender and Law

medicine, technology, and ethics, cases arising out of mistakes with ARTs
reveal more than just the frights of failed technologies and human error.
Cases like that of the Rogerses against the Fasanos unveil race-biased and
sex-biased assumptions that skew our legal analyses. At the heart of the
problem are the assumptions about the role that genetics and genetic
relationships should play in defining legal parenthood. The tendency of
courts to default to a "genetic essentialism ' 13 when trying to unravel the
complicated messes of maternity created by mistakes in ARTs is alarming.

Genetic essentialism asserts that our genes and our DNA are the
essence, the core, the most important constituent part of who we are as
human beings; therefore genetics should overpower any other factor when
defining biological parenthood. Genetic essentialism reduces human beings
to the contents of our cells. It ignores the ways our cells and environments
interrelate, the ways our physiological system functions as a whole
organism, and the ways our minds and hearts affect our being. Additionally,
genetic essentialism renders all our ways of nurturing and being nurtured by
one another for naught.

My aim in writing this essay is to challenge courts, lawyers,
bioethicists, and legal theorists to reject genetics as the ultimate tie-breaker
in contests over legal maternity and legal parenthood. I argue that a
genetics-based or genetic essentialist approach is sex-biased, because it
discounts entirely the relational, nurturing, biological contributions to
reproduction that only women make-gestation and birth. I also argue that a
genetics-based approach can be race-biased because it relies only on
physical/biological signifiers of race, rather than on understandings of the
compound socio-political, historical, legal, cultural, and economic
meanings of race.

When an ART mistake involves racial differences as the Perry-
Rogers v. Fasano case does, a genetic essentialist approach or a simplistic
race-matching approach to parenthood dangerously reduces the complexity
of the race issues to seemingly unadorned biological facts. If genetic
essentialism did not lead the court to biological notions of race, then the
court employed hidden race-biased assumptions that must be brought to
light and challenged. None of this bodes well for an appropriate legal

by several other nomenclatures, including new reproductive technologies and collaborative
reproduction. For an excellent early bibliography on these technologies, see ABA Task
Force on the Law of Reproduction and Genetic Technology (H. Joseph Gitlin, Lori B.
Andrews, Phyllis G. Bossin, Lawrence H. Stotter, Stuart B. Walzer & Bruce Lord Wilder),
Section of Family Law, A Guide to Reproductive and Genetic Technologies: A Selected
Bibliography of Medical and Legal Writing (1990). The expanded use of these reproductive
technologies is phenomenal. A study published in June 2000 noted that one in eighty births
in Britain are "test-tube" babies. David Derbyshire, One in 80 Born in Britain is a Test-Tube
Baby, Daily Telegraph (London), June 28, 2000, available at 2000 WL 23256967.

13 Dorothy Nelkin & M. Susan Lindee, The DNA Mystique: The Gene As A
Cultural Icon 38-49 (1995).

[Vol. 12:1



2003] Genes, Parents, and ARTs

analysis of parenthood for victims of ART mistakes, and yet an appropriate
legal analysis is more ominously needed every day.

Desperation for children of their own led the Fasanos and the
Rogerses to use assisted reproductive technologies to achieve their desired
ends. ARTs, when successful, have enormous power to help couples create
new life, but ARTs can exaggerate the pains of infertility when they are
unsuccessful.' 4 As with any other humanly designed and implemented
technological fix, ARTs have additional potential consequences: the
problems associated with negligent or reckless errors, or even with
intentional abuses. The magnitude of harm from this third consequence
cannot be overstated.'

5

The Fasano and the Rogers families are victims of inexcusable
negligence by an ART provider. Were this essay about the medical
malpractice lawsuit against the 1VF clinic, proof of negligence would be
easy and the only challenging issue would be how to assess the appropriate
damages. But, this essay is about the child, who his family is, and the
assumptions that courts should or should not use when resolving these

14 "In 1995, approximately 7.1 percent of the nation's married couples with wives
of childbearing age were currently infertile, meaning that they had not conceived after at
least twelve months of unprotected intercourse. Approximately 12.9 percent of married
couples reported some form of impaired fecundity, i.e., problems in conceiving or carrying a
pregnancy to term." New York State Task Force on Life and the Law, Assisted Reproductive
Technologies: Analysis and Recommendations for Public Policy, Executive Summary, at
http://www.health.state.ny.us/nysdoh/taskfce/execsum.htm (last visited Oct. 10, 2002). The
written report suggests that "the incidence of infertility is 10.5[%] among married couples
with non-Hispanic black women, roughly 1.5 times greater than among Hispanic or non-
Hispanic white women." Id. See also American Society for Reproductive Medicine (ASRM),
Frequently Asked Questions: Infertility at http://www.asrm.org/Patients/faqs.html (last
visited Oct. 10, 2002) (reporting that over 6.1 million Americans suffer from infertility); Lisa
C. Ikemoto, The In/Fertile, the Too Fertile, and the Dysfertile, 47 Hastings L.J. 1007 (1996)
(examining the discursive use of the language of fertility and infertility and procreative
technologies and their consequences for our understandings and laws about motherhood,
race, gender, class, and sexuality).

Linda Lacey and Barbara Berg make powerful pleas for understanding the
perspectives of infertile women and couples, urging feminist scholars and writers on this
subject not to discount their pain, needs, and good faith. Linda J. Lacey, "0 Wind, Remind
Him That I Have No Child": Infertility and Feminist Jurisprudence, 5 Mich. J. Gender & L.
163 (1998); Barbara J. Berg, Listening to the Voices of the Infertile, in Reproduction, Ethics
& the Law 80 (J. Callahan ed., 1995). Berg additionally critiques the repeated media,
scientific, and scholarly descriptions of infertile couples as "desperate." Though I hear and
value her critique, the concept of desperation still seems apt in this case to me.

15 In addition to any physical harms that arise from ART mistakes, the emotional
distress is unimaginable. Because the genuineness of emotional distress claims arising in
these circumstances is not in doubt, in the two medical malpractice cases brought by both
couples against the IVF clinic physicians, the New York Appellate Division, First
Department, was willing to permit an action for emotional distress even without proof of
physical injury, a highly unusual move for New York courts. Perry-Rogers v. Obasaju, 723
N.Y.S.2d 28 (N.Y. App. Div. 2001); Fasano v. Nash, 723 N.Y.S.2d 181 (N.Y. App. Div.
2001).



6 Columbia Journal of Gender and Law [Vol. 12:1

complicated messes. Who should have custody of Joseph/Akeil and why?
Should visitation be granted to the other couple? Lower and intermediate
appellate New York courts were asked and already answered these
questions in Perry-Rogers v. Fasano.' 6 Leave for appeal to New York's
highest court, the Court of Appeals, was filed in December 2000 and denied
in May 2001.17 The New York Court of Appeals' failure to take up this
important case and to right the terrible wrong done by the lower courts does
not silence the issues presented.

This essay begins by situating the problem of ART mistakes within
the problems that law faces in the bioethics arena, and then by specifically
critiquing the reasoning and approach in the October 2000 decision by the
New York Supreme Court, Appellate Division, First Department in the
Perry-Rogers v. Fasano case. My critique illustrates that to judge this kind
of dispute appropriately, deeper issues about the flawed assumptions
underlying the court's legal analysis must be addressed. Similar kinds of
cases raising questions about genes, parenthood, and assisted reproductive
technologies will inevitably reach other states' highest courts, even if the
New York Court of Appeals avoided the issue this time around. My hope is
to provide some insights that will enable courts and lawyers involved in
cases of ART mistakes to understand the unintended biases that distort this
decision-making process.

II. BIOETHICAL DILEMMAS, ARTS, AND LAW

For the last two decades, our judicial system has trailed woefully
behind the complex bioethical dilemmas that accompany the rapid advances
in biotechnology, biomedicine, and assisted reproductive technologies. For
a bioethics and law professor, the weekly news is an embarrassment of
riches: conjoined twins for whom separation surgery necessarily results in
the death of one twin; 18 "designer babies" whose embryos were genetically

16 715 N.Y.S.2d 19 (N.Y. App. Div. 2000).

17 Perry-Rogers v. Fasano 754 N.E.2d 199 (N.Y. 2001).

18 See, e.g., In re A (Children) (Conjoined Twins: Surgical Separation), [2001]

Fain. 147 CA, [2001] 2 W.L.R. 480 (C.A. Sept. 22, 2000), 2000 WL 1274054. This British
case involves Michaelangelo and Rina Attarc, a strict Roman Catholic Maltese couple
originally from Gozo, who went to Manchester, England to give birth to their conjoined
twins on August 8, 2000. Twins, Jodie and Mary, were joined at the abdomen with fused
spines, two sets of legs and arms at right angles to their bodies, but one heart and one lung.
Doctors said both would soon die if kept together because the heart and the other organs
were not strong enough to support two bodies. Doctors said Mary had "primitive brain
functions" and was "draining [the] lifeblood" out of Jodie. Id. at 204. The girls' parents
refused separation surgery. Doctors went to court to get permission to operate. A British
Court of Appeals ordered surgery after five days of hearings, in an order dated September
22, 2000, written by Lord Justice Alan Ward, himself the father of twin girls. Id. The judge
said that Mary lived "on borrowed time, all of it borrowed from her sister. She is incapable
of independent existence." Id. at 162. The court also said, "Jodie has a right to protest that



2003] Genes, Parents, and ARTs 7

tested and implanted to be tissue matches for living siblings;' 9 infertility
clinic directors stealing or misplacing frozen embryos; 20 custody battles

Mary is killing her," describing the killing of Mary in this case as "legitimate self-defense"
and "the lesser of the two evils-the death of one twin instead of the death of both." Id. at
204. See also Majorie Miller, British Judges OK Surgery to Separate Twins L.A. Times,
Sept. 23, 2000, at Al; Warren Hoge, Siamese Twin is Separated- 'Sadly Dies' to Save Sister
N.Y. Times, Nov. 8, 2000, at A9; and Editorial, A Cruel Solomonic Dilemma, S.F. Chron.,
Sept. 6, 2000, at A20. Surgery was performed when the girls were three months old on
November 7, 2000. After the twenty-hour procedure in November, Mary died. At an inquest
in December 2000, the Coroner, Leonard Gorodkin, did not find that the doctors or the
hospital had committed a lawful act of homicide. Russell Jenkins, Siamese Twin Jodie is
Bright and Flourishing, Times (London), Dec. 16, 2000, at 5. Jodie has made remarkable
progress in her recovery. Doc: Separating Twins a Tough Choice Newsday, Dec. 30, 2000,
at A20. A child psychologist reported that "four-month-old Jodie is making a strong
recovery and exhibits the kind of maturity normally expected from a child of five and a half
months." Jenkins, supra at 5.

For a happier story of conjoined twins, Alaina and Xela Bryce, who were separated
on October 31, 2000, see Steven Carter, Separated Twins Further Divided The Oregonian,
Nov. 28, 2000, at DOI. Both children lived and are making good recoveries. Ken Olsen,
Separated Twin Joins Her Sister at Home The Columbian, Dec. 29, 2000, at C1.

19 This process, called preimplantation genetic diagnosis (PGD), was most recently
in the news for its use by a Colorado couple, Jack and Lisa Nash. Their six-year-old daughter
Molly has Fanconi anemia, which causes massive failure of bone marrow production. This,
in turn, causes anemia, bleeding disorders, severe immune system problems, and, frequently,
death from leukemia or other complications by age seven. Their newborn Adam was born in
Denver on August 29, 2000 through PGD; he was selected to be disease-free and a tissue
match with his sister for bone marrow transplant from the umbilical cord. The bone marrow
transplant was performed on September 26, 2000 and seems to have worked quite well.
"Molly now has an eighty-five to ninety percent chance of being largely free of the marrow
disease." Rick Weiss, Test-Tube Baby Born to Save Ill Sister Wash. Post, Oct. 3, 2000, at
AOl; Peter Gorner, A Child is Born, and So Is a Genetic Dilemma Chi. Trib., Oct. 8, 2000,
at Cl. It took five rounds of PGD and IVF before Lisa became pregnant with Adam. Now
three couples in Australia are "designing" babies to help their children with Fanconi anemia.
Kelly Andrew, 'Designer Lifesavers Last Hope.' Mum Says, The Christchurch Press, Dec.
26, 2001, at 3. See also Leah Wild, It Took 10 People To Make My Babies The Guardian
(London), Apr. 18, 2001, at 10.

20 The most infamous case of misappropriated eggs and embryos is the 1994-95

scandal at the University of California at Irvine Center for Reproductive Health.
Whistleblowers exposed infertility doctors for taking eggs and selling them without the
donors' consent and appropriating the eggs for research without the donors' consent. See
Judith D. Fischer, Misappropriation of Human Eggs and Embryos and the Tort of
Conversion: A Relational View 32 Loy. L.A. L. Rev. 381 (1999); Rebecca S. Snyder,
Reproductive Technology and Stolen Ova: Who is the Mother?, 16 Law & Ineq. 289 (1998).
See also Stone v. Regents of University of California 92 Cal. Rptr. 2d 94 (Ct. App. 1999).
Charges were brought by many couples affected by the egg misappropriation.
Approximately 120 cases were settled for over $21 million. When U.C. Irvine closed this
clinic, the 1,900 frozen embryos then stored at the lab were moved to California Cryobank,
and approximately 300 couples were notified. At that time, another whistleblower leaked
-about two dozen notebooks full of lab records that showed embryos stolen from as many as
500 patients and often sold on a black market to couples who implanted them in Brazil and
South America. New suits have been filed based on the theft of those embryos, as opposed to
the settled actions for the theft of the eggs. Kelly Felts-Gora filed suit in Santa Ana,



8 Columbia Journal of Gender and Law [Vol. 12:1

between ex-partners over stored frozen embryos; 21  posthumous
reproduction;22 infertility treatment-induced multiple births;23 defective,

California in 2000. See Aimee Welch, Special Report: When Scientists Kidnap Embryos, 16
Insight Mag., July 31, 2001, at 20.

In another recent debacle, Paul Fielding, an embryologist at North Hampshire
Hospital and Infertility Clinic, disappeared after it was discovered that thirty-nine couples at
two fertility clinics where he worked in Hampshire had their frozen embryos missing. See
Jenny Booth, et al., Baby Mix-up Scare After Blunders At IVF Clinics, Sunday Telegraph
(London), Sept. 24, 2000. Ironically, when his home was checked, there were still fresh
floral tributes commemorating the recent birth of Benjamin, a second child to Fielding and
his wife Alison, who also have a three-year-old, Jonathan. With his rapid disappearance,
suspicions have been raised about the genetic parentage of his new son. In August 2001,
Fielding and another man were brought up on charges for this embryo loss. Jeevan Vasagar,
Two Appear Before Magistrates Over Disappearance of Frozen Embryos The Guardian,
Aug. 3, 2001, at 7.

See also Rick Weiss, Babies in Limbo: Law Outpaced by Fertility Advances,
Wash. Post, Feb. 8, 1998, at Al (mentioning some cases of missing embryos against doctors
and a fertility clinic in Rhode Island).

21 See, e.g., A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000); Kass v. Kass, 696 N.E.2d
174 (N.Y. 1998); J.B. v. M.B., 783 A.2d 707 (N.J. 2001); Cahill v. Cahill, 757 So. 2d 465
(Ala. Civ. App. 2000); In re Litowitz, 10 P.3d 1086 (Wash. Ct. App. 2000), rev'd, P.3d 261
(WA 2002), amended by 2002 WL 31015235 (Wash. Sept. 10, 2002); and Davis v. Davis
842 S.W.2d 588 (Tenn. 1992), cert. denied, Stowe v Davis, 507 U.S. 911 (1993).

22 Woodward v. Commissioner of Social Security, 760 N.E.2d 257 (Mass. 2002);

Hecht v. Superior Court of Los Angeles, 59 Cal. Rptr. 2d 222 (Cal. Ct. App. 1996), rev.
denied; Hall v. Fertility Institute of New Orleans, 647 So. 2d 1348 (La. Ct. App. 1994); In
the Matter of the Estate of William J. Kolacy, 753 A.2d 1257 (N.J. Super. Ct. Ch. Div.
2000). See also Michelle L. Brenwald & Kay Redeker, A Primer on Posthumous Conception
and Related Issues of Assisted Reproduction, 38 Washburn L.J. 599 (1999); Susan Kerr,
Post-Mortem Sperm Procurement: Is it Legal?, 3 DePaul J. Health Care L. 39 (1999); John
A. Robertson, Posthumous Reproduction, 69 Ind. L.J. 1027 (1994); Anne Reichman Schiff,
Arising From the Dead: Challenges of Posthumous Procreation, 75 N.C. L. Rev. 901 (1997);
Evelyne Shuster, The Posthumous Gift of Life: The World According to Kane, 15 J.
Contemp. Health L. & Pol'y 401 (1999); Carson Strong, Ethical and Legal Aspects of Sperm
Retrieval After Death or Persistent Vegetative State, 27 J.L. Med. & Ethics 347 (1999);
Gladys B. White, Commentary: Legal and Ethical Aspects of Sperm Retrieval, 27 J.L. Med.
& Ethics 359 (1999); Helen Bruce, Baby-Battle: Parents Find Surrogate Mother,
Birmingham Post (U.K.), Dec. 27, 1999, at News 5; Jane Warren, Now I've Got My Son's
Sperm, Nothing Will Stop Me Becoming a Gran, Daily Express, Sept. 20, 2000, available at
2000 WL 24216707; Rick Weiss, Babies in Limbo, Wash. Post, Feb. 8, 1998, at A01
(discussing Julie Garber). Britain struggled with the issue of posthumous reproduction in the
case of Diane Blood, who sought to have a child using her dead husband's sperm. When the
Human Fertilisation and Embryology Authority in England had refused to allow her to she
went to court to get permission, and then to Belgium for the IVF procedure. R v. Human
Fertilisation and Embryology Authority, ex pane Blood, [1999] Fain. 151. She gave birth to
a son, Liam, in 1998. In August 2000, the Government in England accepted a proposal that
children conceived using fertility treatments and sperm from a dead man will be allowed to
have their father's name recorded on their birth certificate, but there will be no extension of
inheritance or succession rights to such children, and the father's name must be followed by
the word "deceased." See Cherry Norton, At Last, Diane Blood Can Put the Name of Her
Husband on Son's Birth Certificate, The Indep. (London), Aug. 25, 2000, at 3. Another



2003] Genes, Parents, and ARTs 9

contaminated, or mistakenly donated gametes; 4 the expanding commercial
market in gametes (ova, sperm, and pre-embryos); 25 gestational and

woman, Marian Jordan will also be able to register her son Daniel as the child of her
husband who died of cancer, but gave written consent to the posthumous reproduction. Id.

23 Multiple births result both from infertility drug treatments and from the practice

of transferring multiple embryos into a womb during each IVF cycle. See generally Ronald
Chester, Double Trouble: Legal Solutions to the Medical Problems of Unconsented Sperm
Harvesting and Drug-Induced Multiple Pregnancies, 44 St. Louis U. L.J. 451 (2000); Mary
Ann Davis Moriarty, Addressing In Vitro Fertilization and the Problem of Multiple
Gestations, 18 St. Louis U. Pub. L. Rev. 503 (1999); Higher Order Multiple Births Drop for
the First Time in a Decade, M2 PressWire (U.K.), Apr. 18, 2001; and Mary Vallis, Doctors
Warning of Boom in Multiple Births: Spurred by Technology, Nat'l Post (Canada), June 28,
2000, at A4, available at 2000 WL 22982601. The United States is the leader in multiple
births from assisted reproductive technologies. Europe Is a Leader in Aiding Fertility by In-
Vitro Means--Treatments in the U.S. Yield More Multiple Births, 28 Wall St. J. Eur., June
29, 2000, at 28, available at 2000 WL-WSJE 21065156. In August 2001, the Human
Fertilisation and Embryology Authority in Britain issued new rules limiting the number of
embryos that can be transferred to a womb during an IVF cycle with the goal of reducing the
incidents of multiple births. David Derbyshire, Fertility Clinics Ordered to Cut Down on IVF
Multiple Births, Daily Telegraph (London), Aug. 8, 2001, at 6.

Recently, in a case of triplets from IVF, a mother prevailed in a suit against the
fertility clinics based on the problems caused by the multiple births. Three's a Crowd, The
Guardian (London), Nov. 22, 2000, at 6. Fertility specialists are still developing drug
treatment protocols that result in multiple births. It was reported in the fall of 2000 that two
women were pregnant with twins and that another woman was pregnant with triplets after
taking Viagra during IVF treatments. Childless Women Expecting Twins After Viagra
Treatment, Daily Telegraph (London), Oct. 26, 2000. They were among ten women who
have become pregnant using Viagra at the Assisted Reproduction and Gynaecology Centre
in London. The drug was given to women who were told they were unable to conceive due
to an extra-thin lining of the uterine wall. Viagra caused the wall to thicken and enabled the
women to conceive.

24 Johnson v. Superior Court, 95 Cal. Rptr. 2d 864 (Ct. App. 2000), rev. denied,

2000 Cal. LEXIS 6741 (Cal. Aug. 23, 2000) (Parents and minor daughter sued sperm bank
and its employees claiming that defendants failed to disclose that the sperm they sold came
from a donor with a family history of Autosomal Dominant Polycystic Kidney Disease
(ADPKD). Parents sought an order compelling the donor's deposition and the production of
records. The court of appeals held that the parents and child could compel the donor's
deposition and production of documents to discover information relevant to their action.) pet.
for writ of mandate denied, 2002 Cal. App. LEXIS 4580 (Ct. App. 2002); Harnicher v. Univ.
of Utah Med. Ctr., 962 P.2d 67 (Utah 1998), as corrected, Mar. 19, 1999 (A couple went to a
fertility clinic exclusively seeking to find a way to have the wife artificially inseminated by
the husband's sperm. To raise the likelihood of success the couple agreed to combine the
husband's sperm with the sperm of an anonymous donor whom they selected because of his
similar features to the husband. When their triplets were born, one of the triplet's coloring
was extremely different from anyone else in the family. Genetic tests revealed that the clinic
had made a mistake and used the wrong donor sperm.); Doe v. Irvine Scientific, 7 F. Supp.
2d 737 (E.D. Va. 1998) (frozen embryos stored in potentially contaminated albumin); Stiver
v. Parker, 975 F.2d 261 (6th Cir. 1992) (contaminated gametes led to birth of disabled child).
Another famous case of mistaken gametes is Michael and Elizabeth Higgins in Florida where
Ms. Higgins's eggs were fertilized with the wrong sperm (a European-American man), rather
than her husband's (an African-American man). This destroyed their marriage and Michael
sued to make sure he was not liable for child support. Michael Lasalandra, Woman, Ex and



10 Columbia Journal of Gender and Law [Vol. 12:1

traditional surrogacy or contractual motherhood arrangements gone awry;26

intergenerational reproduction (e.g., grandmothers giving birth to their

Hospital Settle over Sperm Mix-up, Boston Herald, Aug. 27, 1998, at 012. See also Kenneth
J. Ryan, M.D., National and International Responses to Ethical Issues in Assisted
Reproductive Technologies, Assisted Reprod. Rev. 181, 184 (1996) (Wilma and Willem
Stuart, a Dutch couple, gave birth to one blond and one darker skinned child in 1995 due to a
mix-up with some of the gametes used in IVF.); Marlise Simons, Uproar Over Twins, and a
Dutch Couple's Anguish N.Y. Times, June 28, 1995, at A3. In a separate, infamous case,
Dr. Cecil Jacobson, a fertility doctor, used his own sperm instead of the sperm of anonymous
donors to inseminate approximately 120 patients. He was prosecuted and eventually
imprisoned. United States v. Jacobson 785 F. Supp. 563 (E.D. Va. 1992) (government action
for protective order to close proceedings so parents of children allegedly fathered by
Jacobson could testify without publicity). The most recently reported case of an IVF mix-up
occurred in Britain in July 2002, when a white couple gave birth to black twins. Sarah Lyall,
Whites Have Black Twins in In-Vitro Mix-Up, N.Y. Times, July 9, 2002, at A12. See also
Fischer, supra note 20, at 394 n.100 (citing Teri Sforza, Who Rules How Babies Are Made?,
Orange Country Reg., May 28, 1995, at Al); Fred Norton, Assisted Reproduction and the
Frustration of Genetic Affinity: Interest. Injury and Damages, 74 N.Y.U. L. Rev. 793 (1999);
and Raizel Liebler, Are You My Parent? Are You My Child? The Role of Genetics and Race
in Defining Relationships after Reproductive Technological Mistakes, 5 DePaul J. Health
Care L. 15 (2002).

25 Infertile Couple Offering $100,000 to "Very Special Donor" with "Athletic

Ability" to Donate Eggs, 4 (10) Transplant News, Feb. 29, 2000; Martha Frase-Blunt, Ova-
Compensating?, Wash. Post, Dec. 4, 2001, at FO; Rebecca Mead, Eggs for Sale, The New
Yorker, Aug. 9, 1999, at 56; Rick Weiss, Limited Pay for Eggs Advised, Wash. Post, Aug. 4,
2000, at A05. See also Ruth Macklin, What is Wrong with Commodification?, in New Ways
of Making Babies: The Case of Egg Donation 106 (Cynthia B. Cohen ed., 1996); and Anne
Reichman Schiff, Solomonic Decisions in Egg Donation: Unscrambling the Conundrum of
Legal Maternity, 80 Iowa L. Rev. 265 (1995).

26 Stiver v. Parker, 975 F.2d 261 (6th Cir. 1992) (contracting father refused to take

child after child contracted seriously disabling contagious infection); Johnson v. Calvert, 851
P.2d 776 (Cal. 1993), cert. denied, 510 U.S. 874 (1993) (gestational surrogate mother
decided that she did not want to turn the child over to contracting genetic parents); In re
Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Ct. App. 1998) (when father and mother split
up in a gestational surrogacy case, father disclaimed all paternity); In re Moschetta, 30 Cal.
Rptr. 2d 893, (Ct. App. 1994); R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998) (in dispute
between father and surrogate mother, court refused to enforce surrogacy agreement); In re
Baby M, 537 A.2d 1227 (N.J. 1988) (traditional, genetic surrogate mother refused to give up
child to genetic father and his wife); Decker v. Decker, 2001 WL 1167475 (Ohio Ct. App.
2001), appeal denied, Decker v. Decker, 759 N.E.2d 787 (Ohio 2001); Huddleston v.
Infertility Ctr. of America, Inc., 700 A.2d 453 (Pa. 1997) (surrogate mother sued when
contracting father killed child); and Al Pessin, High Court Rules Separated Couple's Frozen
Embryo May be Implanted, Isr. Faxx, Sept. 27, 1996, 1996 WL 8153475 (The Israeli
Supreme Court, en banc, awarded frozen embryos to ex-wife so that she could have more
children using a gestational surrogate.). See also Soos v. Superior Ct., 897 P.2d 1356 (Ariz.
Ct. App. 1994) (court found that genetic mother should be granted legal maternity instead of
gestational mother). Problems in surrogacy cases continue to dominate the news. In 2001, we
read about Helen Beasley, who was the paid surrogate for a California couple, but when she
became pregnant with twins, the couple ordered selective reduction and Beasley refused. The
twins became the subject of lawsuits; another couple finally agreed to take the twins. Maria
Belen-Moran, Another Couple To Take Surrogate Twins Assoc. Pr. On-line, Aug. 14, 2001,
at 2001 WL 26179241.



2003] Genes, Parents, and ARTs

grandchildren, daughters giving birth to their siblings, etc.); 27 post-
menopausal pregnancies; 28 implications of the Human Genome Project;29

27 Gordon Rayner, The Woman Who Gave Birth to Her Own Grandchild, Daily

Mail (London), Feb. 5, 2001, at 3; Charis Cussins, Quit Sniveling, Cryobaby. We'll Work
Out Which One is Your Mama!, in Cyborg Babies 44-66 (Davis-Floyd & Dumit eds., 1998)
(stories of women giving birth to their sisters' children, i.e., their nieces; giving birth to their
daughters' children, i.e., their grandchildren; daughters giving birth to their mother's
children, i.e., their genetic sisters); Lee M. Silver, Remaking Eden: How Genetic
Engineering and Cloning Will Transform the American Family 166-67 (1998) (story of
grandmother giving birth to her own granddaughter as "gift of love" to her daughter); and
Simon Mowbray, Grandchild Surrogacy Set to Split Couple, Sunday Mercury (U.K.), June
11, 2000, at 9, available at 2000 WL 7303349.

28 Seema Kamdar, Sixty-year-old woman gives birth to baby, The Times of India,

Dec. 9, 2001; Rebecca Fowler, Baby's Bathtime Amid Rising Anger for IVF's Most Bizarre
Family Daily Mail (London), June 23, 2001, at 16 (sixty-two-year-old woman was surrogate
mother to her brother's child with donor egg in order to inherit her mother's estate); 51-
Year-Old Chinese Woman Gives Birth to Test Tube Baby, Xinhua Gen. News Serv., Nov.
30, 2000; John Phillips, Woman, 62, Gives Birth as 'Oldest Mother in World The Times
(London), July 19, 1994, at 14 (Italian woman bore her son when she was sixty-two, making
her oldest recorded birth mother). See also Guido de Wert, The Post-Menopause: Playground
for Reproductive Technology? Some Ethical Reflections, in The Future of Human
Reproduction (John Harris and Soren Holm eds., 1998); Mark V. Sauer, Richard J. Paulson
& Rogerio A. Lobo, Reversing the Natural Decline in Human Fertility: An Extended Clinical
Trial of Oocvte Donation in Women of Advanced Reproductive Age. 268 J.A.M.A. 1275
(1992); and William E. Schmidt, Birth to a 59-Year-Old Briton Raises Storm, N.Y. Times,
Dec. 29, 1993, at Al.

29 The Human Genome Project (HGP) was an international effort to map all the

genes on the human genome. For overview of the project, see National Human Genome
Research Institute (NHGRI), National Institutes of Health (NIH), The Human Genome
Project, http://www.genome.gov. See generally Francis S. Collins et al., New goals for the
U.S. Human Genome Proiect: 1998-2003, 282 Science 682-89 (1998); Symposium, Law and
Human Genetics on the Threshold of the New Millennium, 49 Emory L.J. 745 (2000);
Symposium, The Human Genome Project 26 J.L. Med. & Ethics 181-224 (1998). One of the
original researchers, Craig Venter, broke away and started his own company, Celera
Genomics, in order to complete the mapping sooner than anticipated. See Dick Thomson,
Craig Venter is a Man in a Hurry, Time, Jan. 11, 1999, at 49. A hot race ensued and in June
2000, President Clinton announced that both HGP and Celera had completed the project.
Peter Gomer, DNA's Map Completed How Genes Interact Still a Puzzle Chi. Trib., June
27, 2000, at 1. However, they were only near completion. Since then, Celera has claimed that
it has the entire genome mapped. Justin Gillis, Celera has Mouse Map Monopoly, Wash.
Post, Apr. 27, 2001, at E01. Part of the funds (about three percent) allocated for the Human
Genome Project go to studying Ethical, Legal and Social Implications (ELSI), because they
are many and complex. See Symposium, Genetics and the Law: The Ethical, Legal, and
Social Implications of Genetic Technology and Biomedical Ethics, 3 U. Chi. L. Sch.
Roundtable 417 (1996). See generally The Code of Codes (Daniel J. Kevles and Leroy Hood
eds., 1992); Robert Cook-Deegan, The Gene Wars: Science, Politics and the Human
Genome, Part 5 231 (1994); The Human Genome Proiect and the Future of Health Care
(Thomas H. Murray et al. eds., 1996). See also Joan Stephenson, Ethics Group Drafts
Guidelines For Control of Genetic Material and Information, 279 J.A.M.A. 184 (1998)
(discussing work of the Ethical, Legal and Social Issue Committee of the Human Genome
Organization (HUGO)).



Columbia Journal of Gender and Law [Vol. 12:1

genetic therapies 30 or genetic engineering of embryos;3 sex-selection of
children; 32 chimera; stem cell research; and the cloning of animals and
humans.33

It is no wonder that the courts are befuddled by the conflicts that
arise when these new technologies succeed and fail, whether of their own
accord or because of human error. Legislatures, frequently unable or
unwilling to articulate governing public policies, 34 leave the courts holding

30 The most prominent case of harm from gene therapy occurred when an eighteen-

year-old died four days after therapy started. See Gene Therapy: Reports Disclose 691
Deaths and Illnesses, Am. Health Line, Feb. 1, 2000; Rick Weiss & Deborah Nelson, Penn
Settles Gene Therapy Suit: University Pays Undisclosed Sum to Family of Teen who Died
Wash. Post, Nov. 3, 2000, at A04. See also Joshua Runyun, FDA Seeks to Disqualify Top U.
Pennsylvania Gene Therapy Researcher, Daily Pennsylvanian, Dec. 12, 2000, available at
http://www.dailypennsylvanian.com/vnews/display.v/ART/2000/12/12/3af9704ca7bc8?in-ar
chive=l.

31 Alternatively called "genetic enhancement," genetic engineering to improve the

characteristics of an individual is more than mere science fiction. See, e.g., Alex Salkever,
Building a Better Brain?, Christian Science Monitor, Sept. 2, 1999, at I (scientists alter mice
genetics to increase intelligence). See also Symposium, Genetic Technology: Social Values
and Personal Autonomy in the 2 1St Century, 34 Wake Forest L. Rev. 561 (1999) (particularly
articles by Michael Shapiro, Peter H. Huang, Maxwell J. Mehlman, and Roberta M. Berry).

32 Using pre-implantation genetic diagnosis for sex-selection, a Spanish couple

decided to bear only sons. James Meeks, Sons created to beat blood disease, Guardian
(London), Oct. 17, 2000, at 6. The father suffers from hemophilia, which prevents blood
clotting. Males do not pass the disease on to children, but female children become carriers.
Instead of selecting embryos based on gender, the couple could have had the embryos tested
for hemophilia, something permitted in Britain (although sex selection was not available).
See also the Collinses, who used PGD to select a daughter embryo, giving rise to baby
Jessica. Michael D. Lemonick, Designer Babies Time, Jan. 11, 1999, at 64. See generally
Dorothy C. Wertz & John C. Fletcher, Sex Selection through Prenatal Diagnosis: A Feminist
Critique, in Feminist Perspectives in Medical Ethics 240 (Helen Bequaert Holmes & Laura
M. Purdy eds., 1992).

33 James Chapman, Human Clone Trial Hits Ethical Nerve, Courier Mail, Nov. 27,
2001, at 6. An American couple is paying to clone their dead ten-month-old child. See Jill
Stark, £350,000 To Clone Dead Baby: Couple's Bid To Recreate Girl Causes Public Outcry,
Scottish Daily Record, Jan. 3, 2001, at 8; Philip Delves Broughton, We Will Clone Dead
Baby Girl, Daily Telegraph (London), Jan. 3, 2001, at 3. That quest has ended, but a new
candidate, a fifty-nine-year-old single man with a terminal illness, is attempting to have the
same group of scientists and fanatics, the Raelians, clone him. International Raelian
Movement: Rael Announces A New Candidate For Human Cloning, 4/3/02 Biotechwk 23,
2002 WL 9227896. See also Lori Valigra, Human Cloning Within Reach, Experts Say,
United Press Int'l, Jan. 5, 2001; Executive Summary, Cloning Human Beings: Report and
Recommendations of the National Bioethics Advisory Commission (Executive Office of the
President 1997) (Vols. I & 2). The Executive Summary to that Report can also be found at
14 Issues L. & Med. 217 (1998). See generally Lori B. Andrews, The Clone Age (1999);
Gregory E. Pence, Who's Afraid of Human Cloning? (1998); Clones and Clones (Martha
Nussbaum & Cass Sunstein eds., 1998).

34 As Larry Palmer argues about legislation and ARTs, "[L]egislation is difficult to
pass in our process, and what emerges is not necessarily comprehensive. It usually takes
some change in the political equilibrium for legislation to pass." Larry I. Palmer, Private



2003] Genes, Parents, and ARTs

these "hot potatoes." Usually after a crisis involving ARTs or
biotechnologies, commissions and task forces are formed to articulate
guidelines for thinking about the issues and to develop proposals for
legislative responses.35 Legislation that does get enacted often fails to
anticipate the newest ARTs and their unique twists. 36 The "victims" of this
technology have no choice but to resort to the courts, and the courts have no
choice but to find appropriate legal and factual analogies on which to base
their decisions. When analogies fail, the courts must forge ahead, consistent
with whatever policies can be discerned from prior legislative, judicial, and
executive actions.37 But looking to policies and analogies is insufficient.
Courts must proceed with sensitivity to justice concerns about gender, race,
and class-based equality. Lawmaking in novel situations is a difficult task
for courts, but certainly within their role. When disputes such as that of the
Fasanos and Rogerses appear in their courtrooms, judges cannot disregard
their professional commitments to justice and equality simply because the
legislature has failed to act.

Commissions, Assisted Reproduction, and Lawyering, 38 Jurimetrics J. 223, 231 (1998)
(book review).

35 National Advisory Board on Ethics in Reproduction (NABER), Report and
Recommendations on Oocvte Donation, in New Ways of Making Babies: The Case of Egg
Donation 233-302 (Cynthia B. Cohen ed., 1996); N.Y. State Task Force on Life and the
Law, Assisted Reproductive Technologies: Analysis and Recommendations for Public
Policy (1998); Royal Commission on New Reproductive Technologies, Proceed with Care
(1993); Assisted Reproductive Technologies and Genetic Committee of the ABA; Institute
for Science, Law and Technology's Working Group on Reproductive Technologies (ISLAT),
Art into Science: Regulation of Fertility Techniques, 281 Science 651-52, Jul. 31, 1998;
President's National Bioethics Advisory Commission, http://bioethics.georgetown.edu/nbac
(last visited Aug. 30, 2002).

36 See, e.g., Unif. Parentage Act, 9B U.L.A. 301 (1987 & Supp. 1999); Unif. Status

of Children of Assisted Conception Act, 9B U.L.A. 135 (Supp. 1999).

37 Recently, Judge Stanton of the New Jersey Superior Court concluded that the
general intent of New Jersey law should override a literal interpretation as applied to new
assisted reproductive technologies (in that case, posthumous reproduction), "when the
legislature ... was not giving any thought whatever to the kind of problem we have in this
case." In re Estate of Kolacy, 753 A.2d 1257, 1261 (N.J. Super. Ct. Ch. Div. 2000). Judge
Stanton notes, "We judges cannot simply put those problems on hold in the hope that some
day (which may never come) the Legislature will deal with the problem in question. Simple
justice requires us to do the best we can with the statutory law which is presently available."
Id. at 1261-62. Likewise, the Massachusetts Supreme Court permitted inheritance by
posthumously conceived children in limited circumstances by looking at the general intent of
the intestacy laws, but urged the Legislature to act. Woodward v. Comm'r of Soc. Sec., 760
N.E.2d 257 (Mass. 2002) ("As these technologies advance, the number of children they
produce will continue to multiply. So, too, will the complex moral, legal, social, and ethical
questions that surround their birth. The questions present in this case cry out for lengthy,
careful examination outside the adversary process, which can only address the specific
circumstances of each controversy that presents itself. They demand a comprehensive
response reflecting the considered will of the people. In the absence of statutory directives,
we have answered the certified question by identifying and harmonizing the important State
interests implicated therein in a manner that advances the Legislature's over-all purposes.").



Columbia Journal of Gender and Law

Courts fail us miserably when they use the language and procedures
of technology-dated statutes to bar deep analysis of the substantive issues
and justice concerns that arise in cases of ART mistakes. 38 But decision-
making outside of a clear legislative context is also fraught with dangers.
Judicial resolutions of disputes arising from the use of ARTs have often
defaulted to a genetics-based approach to defining parenthood, which I
argue reproduces an unacceptable sex-bias in the law. In addition, in the
interracial ART mistake cases like Perry-Rogers v. Fasano, courts may
inadvertently utilize a race-matching approach that ultimately hearkens
back to a kind of discredited biological racism. The Perry-Rogers v. Fasano
case provides a concrete example for my more general arguments about the
kinds of analyses that need to be explored in answering the bioethical and
legal dilemmas that arise from ART mistakes. I use the case to illustrate
both the horrors of ART mistakes and the ways in which courts
unconsciously or subconsciously rely on deeply flawed and biased
assumptions in determining parenthood. Part III critiques the Perry-Rogers
v. Fasano decision to give a context to Part IV, which contains my deeper
substantive critique of the issues about parenthood that arise from ART
mistakes.

III. THE PERRY-ROGERS V. FASANO DECISION: A CRITIQUE
OF FLAWED REASONING

The challenges of the Fasanos and Rogerses' story surpass any
hypothetical problem that the most creative bioethics and law, family law,
or torts professors could invent. One cannot help but imagine the multiple
ways in which thoughtful and creative answers could be formulated. The
reasoning in the New York Supreme Court, Appellate Division, First
Department decision was terribly disappointing. The Perry-Rogers v.
Fasano 39 decision turns on a standing issue, elevating process over analysis
of the substantive issues. The court attempts to avoid all the sticky
substantive issues by denying the Fasanos standing to seek visitation. This

38 Contra Palmer, supra note 34, at 231: "The real question is whether a court
should abandon the legislative framework for resolving custody disputes in the context of
divorce because assisted reproductive technology was used to produce the children. Whether
the use of in vitro fertilization should make a difference in how the custody dispute is framed
is a legislative rather than judicial decision," but when the legislature fails to act, the courts
must intervene, at least to "provide an incentive for the parties and their lawyers to resolve
the dispute themselves prior to a full litigated trial." Palmer argues that courts are correct in
reaching a result on a narrow ground and leaving the issue to the legislature, even
recognizing that getting legislation on the subject is slow, plodding, and difficult to achieve.
"The best response from courts to cases that come before them is to resolve them narrowly,
and on non-constitutional grounds, since legislatures rather than courts are the least
detrimental legal means of changing the nature of family." Id. at 234.

" 715 N.Y.S.2d 19 (App. Div. 2000).

[Vol. 12:1



Genes, Parents, and ARTs

approach not only intentionally evades the issues that underlie the dispute,
but also deeply damages our emerging jurisprudence surrounding assisted
reproductive technologies and impugns the court's perceived legitimacy.

No decisions seem more illegitimate than ones that resolve cases on
subordinate, technical, procedural matters or literal readings of statutes that
were never intended to cover such a situation, when they need to discuss
thorny and deep substantive issues underlying the dispute. The Peee
Rogers decision of the New York Appellate Division fails for this reason, in
addition to its undeveloped theories of the case. Truthfully, I am neither a
process-phobe nor an advocate for rampant judicial activisnm--I respect that
courts are supposed to apply statutes rather than legislate from the bench.
When concerns regarding process prevail over reasoned resolutions of
heart-wrenching conflicts, the judicial system becomes a mockery of
justice. Form over substance deprives judicial opinions of legitimacy.

In Perry-Rogers v. Fasano, when Donna Fasano, the mother who
bore the twins, sought to enforce a visitation agreement regarding the child
who turned out to be genetically unrelated to her but genetically related to
the Rogerses, she was told she did not have "standing" to dispute custody or
visitation of the child. This resolution is worse than a substantive decision
with a negative outcome. The court resolves the substantive issues by
default, rather than by dealing with them directly, and it resolves the
procedural issue in such a way as to block entirely one party's access to the
judicial system for resolution of its dispute. Where one party is deprived of
fair process and an opportunity to be heard, respect for and obedience to the
law wanes.4' The Fasanos had no opportunity to present their claims about
the best interests of the child and the quality of their relationship. Vincent,
the twin who grew in the womb with Joseph/Akeil, was denied standing to
seek visitation as a sibling. Where standing and courthouse "door-closing"
are used as flimsy excuses to avoid a reasoned explanation of the court's
preferred substantive result, even more damage is done to public
perceptions about the legitimacy of the judicial system.42 If, as an effect of
the court's ruling, the Rogerses end up with exclusive custody of
Joseph/Akeil and the Fasanos have no visitation rights at all, then the court
has an obligation to tell us why that ought to be so and to explain the role of
the ART mistake in the result.

40 Id. at 25.
41 See generally Tom R. Tyler, et al., Social Justice in a Diverse Society (1997);

Tom R. Tyler, Why People Obey the Law (1990); Tom R. Tyler & John M. Darley, Buildin
a Law-Abiding Society: Taking Public Views About Morality and the Legitimacy of Legal
Authorities into Account When Formulating Substantive Law, 28 Hofstra L. Rev. 707
(2000).

42 For an analogous argument about the ways federal courts have used courthouse

"door closing" mechanisms to avoid explaining their decisions on pressing substantive
issues, see Daan Braveman, Protecting Constitutional Freedoms: A Role for Federal Courts
(1989).

2003]



Columbia Journal of Gender and Law

A. The Subject Matter Jurisdiction Arguments

In fairness to the court, the parties did not help the court reach the
substantive issues in the case, because of the way they framed their
arguments. They relied heavily on procedural arguments to make their cases
for whether visitation should be allowed in this case. The appellate court
could arguably claim that it was restricted-by the briefs and issues on
appeal-to the approach it took in this difficult case. The Fasanos
questioned the subject matter jurisdiction of the court based on the manner
in which the Rogerses dismissed and then refiled their custody action under
the same index number. The appeals court, in a unanimous opinion
authored by David B. Saxe,43 dismissed this argument and issued a nunc
pro tunc order to the Rogerses to get a new index number and to transfer the
documents to that file. The court wisely rejected the Fasanos' argument that
this procedural defect deprived the court of subject matter jurisdiction.

The Fasanos are not alone in trying to get the case dismissed on
procedural grounds. The Rogerses also make procedural arguments about
subject matter jurisdiction and standing. The court sensibly casts off their
subject matter jurisdiction argument as well. The Rogerses assert that the
court has no subject matter jurisdiction and that the Fasanos have no
standing because the Fasanos are "genetic strangers." The court denies this
challenge to its subject matter jurisdiction, stating that it has subject matter
jurisdiction over all petitions for custody and visitation without regard to
the genetic relationship between the parties and the child.44 As the court
sees it, the procedural problem in this case, if any, is not subject matter
jurisdiction, but whether the Fasanos have standing to claim visitation
rights.

B. The Standing Arguments

The court ultimately accepts the Rogerses' argument that the
Fasano parents and son Vincent, lack standing. In finding no standing in the
gestational parents or gestational womb-mate, the court insists that it does
not reach its decision "solely" by privileging genetics over other biological
or social factors. The opinion specifically notes that "it is simply
inappropriate to render any determination solely as a consequence of
genetics. ' The court overtly rejects the idea that being a genetic stranger
deprives one of standing to sue for visitation. In an important move the

43 Other members of this court included Milton L. Williams, J.P., Peter Tom, Betty

Weinberg Ellerin, and Richard T. Andrias.

4Perr-Rogers, 715 N.Y.S.2d at 71.

45 id.

[Vol. 12:1



Genes, Parents, and ARTs

court also hypothesizes that "a 'gestational mother' may possess
enforceable rights under the law, despite her being a 'genetic stranger' to
the child.,

46

In Part IV of this essay I argue that the court did make this decision
about standing "solely as a consequence of genetics," that is, on the basis of
"genetic essentialism, 4 7 despite its protestations to the contrary, or else it
made a decision "solely as a consequence of race." Furthermore, I suggest
that genetic essentialism or genetic determinism serves as a cover for
continued unconscious sexism in law and race-based decisions perpetuate
biological racism in our society. Before I make those arguments however, I
will finish reporting on and critiquing the court's other arguments leading to
the denial of standing for the Fasanos.

The standing arguments are where the court seriously falters. The
Rogerses make two major standing arguments, one of which the court aptly
rejects, but the other of which the court adopts, despite its inconsistency
with other reasoning within the opinion. First, the Rogerses claim that the
Fasanos and their son Vincent do not have standing to argue for visitation
because they do not meet the statutory definition of parties who may seek
visitation under New York law.48 Since the Fasanos gave up their rights as
parents in the voluntarily signed agreement and turned the baby over to the
Rogerses, the Rogerses argue that the Fasanos no longer qualify as parents
who have a statutory right to sue for visitation. The court discards this
argument, noting in footnote one that it could conceivably treat both the
genetic mother and the gestational mother as parents.49 Acknowledging
another couple's genetic contribution to a child does not remove the birth
parent's standing. 0 So far, so good. It looks like now we can get to the
substance of the dispute, right? Wrong.

46 id.

47 Dorothy Nelkin & M. Susan Lindee, The DNA Mystique: The Gene As A
Cultural Icon 38-49 (1995).

48 N.Y. Dom. Rel. Law § 70 (Consol. 2002).
49 Perry-Rogers, 715 N.Y.S.2d at 25 n.1.

Despite the longstanding tradition that a child cannot have more than one
mother and one father at a time, some exceptions to that firm rule have
recently begun to develop. For instance, it is now possible for both
parties in a lesbian couple to be a child's mother. It is also possible for a
parent to assert rights to continuing visitation despite having given a
child up for adoption. It is certainly conceivable that under some other
circumstances, we would have to treat both genetic and gestational
mother as parents, at least for certain purposes (citations omitted).

Id.
so Perry-Rogers, 715 N.Y.S.2d at 25.

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The court unanimously decides that the Fasano parents and Vincent
do not have standing to seek visitation after all in response to the Rogerses'
second standing argument. The Rogerses' second argument is based on the
unique circumstances of this case. The court concludes that the Fasanos
acted badly by not giving the child to the Rogerses at birth, since they were
made aware of the embryo mix-up early in the pregnancy. The court
reasons that because the Fasanos knew about the embryo mistake/mix-up
early in the pregnancy, they could have "corrected" the problem as soon as
the baby was born, rather than creating a situation where a parent-child
bond had formed. The court is persuaded that the Fasanos behaved badly by
allowing this bond to develop and therefore should be denied standing to
raise visitation issues. In other words, they should be "punished" for their
wrongdoing by barring their ability to maintain a relationship with their
baby.

Within this parental standing argument are three separate,
subordinate analyses, all of which are deeply flawed: an equitable "dirty
hands"-like analysis, the application of faulty analogies, and inconsistent
rhetoric surrounding maternal bonding. After denying the Fasanos standing
as parents under any of its proposed analogies and muddying its argument
with rhetoric about intrauterine bonding, the court also summarily dismisses
the womb-mate's "sibling" argument for standing. I will critique these
arguments seriatim.

1. Dirty Hands

At the end of the day, the court denies the Fasanos standing because
of their "bad" conduct. Although the court does not use these words, this is
arguably an equitable "dirty hands"-type argument. The Fasanos wrongfully
permitted a bond to form when they kept the baby for over four months
after its birth, so the court declared that they now have the equivalent of
"dirty hands." As Judge Saxe states:

[A]ny 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 a way
as to create a bond, and then rely upon it for their assertion of
rights to which they would not otherwise be entitled.5 '

A party with "dirty hands" cannot expect a court to hear its claims. 52

SI Id. at 26.

52 As a principle of equity, the "clean hands doctrine" states that a litigant can be
proscribed relief if s/he comes to court with "dirty hands" regarding issues to the dispute.
27A Am. Jur. 2d Equity § 126 (1996). Conduct constituting dirty hands includes unfair,
dishonest, fraudulent, inequitable, or deceitful behavior.

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Denial of the Fasanos' right to argue for visitation seems an
inappropriately strong punishment for forming a bond with Joseph/Akeil.
The court assumes that the Fasanos do not have any rights to the child
("rights to which they would not otherwise be entitled"53) and, based on that
assumption, concludes that they acted purposefully and wrongfully by
bonding with the Rogerses' baby. Yet, as I argue infra, the assumption of
the Fasanos' non-parentage 54 is contradicted by the court's own assertions
in this opinion and by fair understandings of maternal parenthood. To my
mind, it is indisputable that Donna Fasano is the child's gestational and
biological mother, a relationship that does entitle her to rights to the child,
or, at a minimum, rights to make claims to the child. The court
acknowledged as much in its first footnote, stating, "It is also possible for a
parent to assert rights to continuing visitation despite having given a child
up for adoption. It is certainly conceivable that under some circumstances,
we would have to treat both genetic and gestational mother as parents"[.],,5

However, even if we were to agree, for the purposes of argument,
with the court's assumption that the Fasanos acted badly by not delivering
the child to the Rogerses upon his birth, the Rogerses are not in a position to
claim "dirty hands." Both sides to this dispute can be accused of "dirty
hands," if we are to follow that logic. The Rogerses signed an agreement
with the Fasanos that allowed visitation and promised to drop their lawsuit
in exchange for physical custody of the child. Then after receiving physical
custody of the child, they immediately violated the terms of the agreement.
The law states that when both sides act with "dirty hands," neither may
advance that equitable argument against the other.5 6 Nevertheless, the court
excuses the Rogerses' "bad" conduct, s7 and applies a "dirty hands"-like
rationale to bar the Fasanos from seeking visitation.

If the court were fairly utilizing equitable considerations, a more
appropriate concept would be in pari delicto: "where the wrong of the one
party equals that of the other, the defendant is in the stronger position." 58

Since the Rogerses commenced this declaratory action for a declaration of
their sole parentage and exclusive custody, the Fasanos are the defendants

53 Perry-Rogers, 715 N.Y.S.2d at 26.

4 The court calls it Fasano's "nominal parenthood." Id. at 25.

"Id. at 25 n.l.
56 27A Am. Jur. 2d Equity § 126 (1996).

57 Without explanation, the court apparently accepts the Rogerses' assertion that
they were coerced into entering into the agreement for custody by the duress of not having
another way to get physical custody of Akeil/Joseph.

58 27A Am. Jur. 2d Equity §132 (1996). Both the clean hands doctrine and in pari

delicto have been applied to custody, visitation, and family law matters, although the court is
supposed to yield to the dictates of justice and public policy if they conflict with application
of the maxims.

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Columbia Journal of Gender and Law

who benefit from this maxim. The court's failure to apply the more
appropriate equitable approach confirms my conclusion that the court
intended all along to find any way it could to give the child exclusively to
the genetic parents. The power of the subterranean genetic essentialist
ideology overrode traditional equitable considerations. And if it was not
genetic essentialism that motivated this result, then the court was persuaded
by a race-matching rationale that is equally, or even more, troublesome.

2. Faulty Analogies

The court's second logical error occurs in its use of faulty
analogies. Judge Saxe recognizes the close analogy of this case's facts to
gestational surrogacy cases, but he also tries to make analogies to cases
where babies are switched at birth and to non-biological parent cases
involving failed same-sex or step-parenting partnerships. None of these
analogies is appropriate. More importantly, the analogy to gestational
surrogacy upon which the court relies is most pernicious because there was
no commercial or altruistic surrogacy agreement leading to the relationship
between Donna Fasano and Joseph/Akeil. I shall address each analogy in
the order that the court does.

a. Switched Babies

For cases in which a switch or mix-up occurs at the hospital and
new parents are given the wrong baby to take home, the court claims the
law is clear. If the mix-up is discovered right away, there is no question in
law that the matter should be corrected at once. Analogizing to such cases,
the court finds in this case that the Fasanos should have given the baby to
the Rogerses immediately, thus preventing bond formation. The Fasanos
may not argue for visitation based on a parent-child bond here, the court
explains, when that bond was wrongly formed after learning of the mix-up.
The court seems persuaded by the switched babies analogy:

[W]here 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 as soon as possible, before the development of a
parental relationship. It bears more similarity to a mix-up at the
time of a hospital's discharge of two newborn infants, which
should simply be corrected at once, than to one where a
gestational mother has arguably the same rights to claim
parentage as the genetic mother.59

59 Perry-Rogers, 715 N.Y.S.2d at 25 (footnote omitted).

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Genes, Parents, and ARTs

The apparent simplicity of this analogy to switched-babies cases is
convoluted when one questions when the bond was wrongly formed. The
court leaves us guessing on that score. Did the court criticize the Fasanos
for forming a bond after the child's birth (during the time Joseph/Akeil
lived with the Fasanos before he was transferred to the Rogerses) or for
forming a bond during the remainder of the pregnancy (after the Fasanos
were informed about the embryo mix-up and the possibility that one or both
of their twins might be the genetic child of another)? This court never tells
us what its understandings about parent-child bond formation are. At this
point in the opinion, we do not know whether the court acknowledges
intrauterine bonding or believes that all mother-child bonding occurs after
birth.

Instead of explaining how it perceives parent-child bonding to
work, the court concludes without explanation that the boy should have
been turned over to the Rogerses immediately at birth. This mandated result
is not obvious to me even now, and certainly it would not have been
obvious to me as a parent at the time of the child's birth. I am perplexed
about why this court is so sure that the baby should have gone to the
Rogerses and that switched-baby analogies are persuasive. The only way I
have been able to make sense of the court's approach is to attribute it to an
unspoken (and perhaps even unconscious) ideology of genetic essentialism
that incorporates unfair biases about gender, science, and technology or to
an unspoken (and perhaps even unconscious) ideology of race matching that
is linked to biological racism. These arguments must be taken up later,
though, because they interfere with the remainder of this critique of the
switched-babies analogy.

Assuming arguendo that the switched babies cases are correctly
decided, 6° this analogy still fails. Switched-baby cases involve at least two
parents (often two sets of parents) each of whose baby is wrongfully taken
and given to another. In this case, there is no mutuality of exchange based
on the mix-up. It is not as though the Rogerses have the Fasanos' baby and
the Fasanos have the Rogerses' baby. The hospital mix-up cases may come
out the way they do because once the mix-up is rectified, both sets of
parents end up with the babies at the same time. In cases where there are not
two children to be returned to their "rightful" parents when the switch is
ameliorated (like this one) or where sufficient time has elapsed to allow the
non-genetic parent(s) to form a familial bond, courts acknowledge, as the
Penry-Rogers v. Fasano court does in footnote two, that other courses of

60 The legal inspiration for the switched baby cases may itself be misguided.

Turning over the mistakenly given baby, even in the switched baby cases, seems like a
property-based or commodification argument. The baby becomes "property wrongly
acquired." Yet, courts are loathe to say that children are property or quasi-property,
ownership of whom is to be determined by property law. See In re Baby M, 537 A.2d 1227
(N.J. 1988). See also Margaret Jane Radin, Market-Inalienability, 100 Harv. L. Rev. 1849
(1987).

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action may be followed. In those cases, the genetic parents may only get

visitation rights, rather than legal custody, while the nurturing parents are
entitled to continued custody. 6' Because of the passage of time and the bond
that was formed, courts generally realize that there are interests more
powerful than genetics that must govern the ultimate determination of
parentage. Apparently the court in this case did not consider the bond
formed during the more than seven months of pregnancy after the mix-up
was discovered, or the four-and-a-half months after the child's birth, as
moving the Fasano claim into the latter category of analysis.

A second way the switched-babies analogy fails is that a baby and

an embryo are not similar enough to be analogized. In the instant case, an
embryo is what was mistakenly switched or misappropriated; there were no
babies in existence at the time of the mix-up. To apply this mix-up analogy
properly, Donna Fasano would have had to turn over the mixed-up embryo
upon notification of the mistake. Could this really be what the court
intends? Surely the court did not conclude that the embryo should have
been removed from Fasano's womb and placed in Ms. Perry-Rogers, even
if that were technologically possible without risk to both fetuses and both
mothers. It is doubtful that the Rogerses would have even wanted that relief
when they were notified of the clinic's mistake, particularly since Ms.
Perry-Rogers's body had just endured the unsuccessful procedure from the

month before. Besides, so far as the Rogerses' genetic embryo was

61 Pope v. Moore, 403 S.E.2d 205 (Ga. 1991); Mays v. Twigg, 543 So. 2d 241,

(Fla. Dist. Ct. App. 1989). Ilana Hurwitz notes another recent case of switched babies in her
article, Collaborative Reproduction: Finding the Child in the Maze of Legal Motherhood 33
Conn. L. Rev. 127, 154-55 (2000) (footnotes omitted):

Recently, in Virginia, Paula Johnson, who sought child support from her
estranged boyfriend, discovered through blood tests that neither she nor
her former boyfriend was the biological parent of Callie Johnson, the
three-year-old little girl Paula had reared. After investigation, Paula
Johnson discovered that a baby girl born to Kevin Chittum and Whitney
Rogers, in the same hospital on the same day as she had given birth to a
baby girl, actually was the child she was given to take home. Her
biological daughter was mistakenly given by hospital personnel to
Chittum and Rogers and raised by them as Rebecca Chittum. On the
weekend after Paula Johnson's discovery, as fate would have it, Kevin
Chittum and Whitney Rogers were killed in a car accident, leaving
Rebecca Chittum orphaned of social parents and Callie Johnson
orphaned of biological parents. Paula Johnson faced a dilemma. On the
one hand she had an ineradicable biological connection to Rebecca
Chittum. On the other hand, she had developed a mutual loving
relationship with Callie Johnson, the child she nurtured and emotionally
nourished for three years, the child for whom Paula had been "mother."
Holding a large color photograph of Callie Johnson, Paula said about
Callie at a news conference: I love her wholeheartedly, with all my
heart.... There isn't anything I wouldn't do for her." When asked in a
television interview if she had any intention of switching the two
children, Paula answered unequivocally, "No."



Genes, Parents, and ARTs

concerned, it was already too late to do any transfer when the mix-up was
discovered because the embryo had become a fetus attached to Fasano by a
placenta.

Realistically, the Rogerses cannot be arguing that they wanted the
embryo back at the time the error was discovered. That embryo no longer
existed even then. Once the embryo implanted itself in Fasano's womb and
grew to be a fetus, it was not the same being as the embryo mistakenly
transferred, or even the same being as the embryo would have been had it
been transferred into Perry-Rogers's womb in the first instance. The fetal
environment powerfully affects the growth and development of the fetus.
Government-sponsored warnings about pregnant women's cigarette
smoking, drug use, and alcohol intake attest to the influence the fetal
environment has on fetal development, as do government programs like
WIC, which is designed to supplement pregnant women's dietary needs.
Actions of pregnant women affect the health and growth of their babies. By
the time the embryo is gestated into a baby in another woman's womb, it is
transformed from what was mixed up in the first place.62 The gestating
woman's contribution to what the embryo becomes is not excisable from
the baby that is born. The switched-babies analogy just doesn't work.

b. Same-sex Couple and Stepparent Custody Disputes

The court's second analogy is to custody and visitation disputes
between same-sex parents or between stepparent and biological parent. In
same-sex parents' custody disputes, the nurturing parent who is a
"biological stranger" can be denied all rights to the child in New York.63

Likewise, the stepparent who has not legally adopted his or her stepchild
can be denied visitation based on being a "biological stranger."'64 Using this
analogy, the court follows what it calls the "strong policy considerations 65

applied in those "biological stranger" parent cases to find that the Fasanos
have no rights to the child. Seeming to find this analogy superior to
gestational surrogacy as well,66 the court relies on two New York cases,
Alison D.67 and Ronald FF.,68 that hold that "where a child is properly in the
custody of parents, ... those parents are accorded a [sic] extremely broad

62 I hope we will never go down the path of understanding the fetus/baby as an
embryo with value-added.

63 In the Matter of Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991).

64In the Matter of Ronald FF. v. Cindy GG., 511 N.E.2d 75 (N.Y. 1987).
65 The court discusses "strong policy considerations," but does not even explain

what they are. Perry-Rogers v. Fasano, 715 N.Y.S.2d 19, 25 (App. Div. 2000).
66 Id.

67 In the Matter of Alison D., 572 N.E.2d at 27.

68 In the Matter of Ronald FF., 511 N.E.2d at 75.

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Columbia Journal of Gender and Law

rights to exclude any visitation, even by a person who raised and nurtured
the child as his or her own."69 Though I believe those cases are badly
reasoned and wrongly decided, even assuming their legitimacy, their
application to this situation is untenable.

Cases about stepparents or same-sex couples and their children's
custody after the parenting couple splits up, cases in which one of the
parenting adults is not biologically related to the children he or she
nurtured, are inapposite to this case of a woman who has a clear biological
connection to the child she carried in her womb for nine months. If
biological-relatedness is the sine qua non of natural parenthood according
to New York law, a gestational mother, such as Donna Fasano, necessarily
meets that test.7 0 Her blood and nutrients course through the fetus. Her
womb envelops and stretches to accommodate the fetus. The fetus is with
the gestational mother every minute of every day, whatever she is doing, for
nine months. These are basic physical, biological connections. Fasano has
consistently asserted rights to the child based on her biological (gestational)
motherhood. Fasano is the child's mother. So too may be Perry-Rogers, but
that does not take away from Fasano's maternity and right to make claims
for visitation. The court offers no explanation or reason that the "strong
policy considerations" in the "biological stranger" cases should apply to this
case, where the court acknowledges that it is inaccurate to call a gestational
mother a "biological stranger.",71 If nothing else, Fasano is clearly one of the
child's mothers, the gestational mother, the woman who gestated the
embryo to bring it to life. Without a "biological stranger" claim, application
of the same-sex couples or stepparent analogy completely loses its force.

c. Gestational Surrogacy

The third erroneous analogy is to a gestational surrogacy case. This
court makes a flawed assumption about maternity that is internally
inconsistent within the opinion and just plain wrong. The court likens this
case to gestational surrogacy. While Fasano may be the "gestational

69 Perry-Rogers 715 N.Y.S.2d at 25 (emphasis added). See also Troxel v.

Granville, 530 U.S. 57 (2000). But see V.C. v. M.J.B.. 748 A.2d 539 (N.J. 2000), cert.
denied (The New Jersey Supreme Court granted visitation to the same sex partner who was a
child's "psychological parent" using a best interests of the child standard.).

70 We must distinguish between a gestational surrogate mother, one who for
commercial or altruistic reasons agrees to bear a child for another person to rear, and a
gestational mother, a woman who becomes pregnant and "gestates" a child, whether from
her own genetic material or not, intending to be the child's mother. Surrogacy arguably adds
another layer to the analysis of maternity that is not present in this case. See McDonald v.
McDonald, 608 N.Y.S.2d 477 (App. Div. 1994). But see Arrendondo v. Nodelman, 622
N.Y.S.2d 181 (Sup. Ct. 1994).

71 Perry-Rogers, 715 N.Y.S.2d at 25.

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2003] Genes, Parents, and ARTs 25

mother,, 72 she is not a "surrogate mother" or "gestational surrogate" in any
of the ways that that term has been used. A gestational surrogate contracts
or agrees to become impregnated with an embryo that is genetically
unrelated to her. Regardless of whether courts decide gestational surrogate
mother cases appropriately, 73 their reasoning turns on the intention of the
parties, as the Perry-Rogers v. Fasano court attests. 74 Based on intentions,
this court finds that in a fictional custody dispute between the Rogerses and
the Fasanos, the Rogerses would win:

Parenthetically, it is worth noting that even if the Fasanos had
claimed the right to custody of the child, application of the
"intent" analysis ... would-in our view-require that custody be
awarded to the Rogerses. It was they 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.75

Frankly, I cannot understand how the court reached such an
unexamined conclusion. Yes, the Rogerses "arranged for their genetic
material to be taken and used in order to attempt to create their own child,
whom they intended to rear." So did the Fasanos. Both couples engaged in
the identical processes with identical intentions. Their intentions are not
altered by the clinic's mistake. Each woman intended to bear a child of her
own. Neither woman intended to bear a child for another woman or to have
another woman bear her child, a fact that courts use to justify taking a child

from its gestational mother in surrogacy cases. Were the intent-based
reasoning of the gestational surrogacy cases applicable at all, it would not
lead to a preference of one set of parents over the other on these unique
facts. For this reason alone, a gestational surrogacy analogy does not work.

Even more curious is why the court did not use an "embryo
donation" analogy instead of a "gestational surrogacy" one. Embryo
donation, which is akin to sperm or ova donation, may be the more
appropriate theoretical approach, if we are to assume that something was
"donated" (either a womb or a gamete/embryo) in this mix-up. 76 Proposed

72 The court clearly identifies her as such in its opening paragraph: "This appeal

concerns a tragic mix-up at a fertility clinic through which a woman became a 'gestational
mother' to another couple's embryo, when the embryo was mistakenly implanted into the
wrong woman's uterus." Id. at 21.

73 I would also argue that courts often err in their decisions and analysis in
gestational surrogacy cases.

7' 715 N.Y.S.2d at 24 (citing Johnson v. Calvert, 851 P.2d 776 (Cal. 1993) and
McDonald v. McDonald, 608 N.Y.S.2d 477 (App. Div. 1994)).

751 Id. at 73.
76 See, e.g., Anne Reichman Schiff, Solomonic Decisions in Egg Donation:

Unscrambling the Conundrum of Legal Maternity, 80 Iowa L. Rev. 265 (1995).



Columbia Journal of Gender and Law

statutes like the Uniform Parentage Act (2000) have concretely addressed
cases of sperm and ova donation. In those scenarios, the anonymous donor,
though the genetic parent, is declared by law not to be the parent. 7 The
Perry-Rogers v. Fasano opinion contains no explanation for the court's
preference of a gestational surrogacy analogy to an embryo donation one.
The court's selection of a gestational surrogacy, rather than embryo
donation, analogy reinforces my conclusion that the court's decision is
rooted in unconscious or conscious assumptions of genetic essentialism. In
truth, neither analogy works because neither situation represents the parties'
intentions nor the facts of the case.

More potent, however, than the court's failure to consider an
embryo donation analogy is the inapplicability of the gestational surrogacy
analogy in the first place. As was noted above, being a gestational mother
differs from being a gestational surrogate. The New York courts recognized
how the different statuses require different results in McDonald v.
McDonald. 8 In McDonald, the gestational mother and her husband had
used donated eggs from another woman (ostensibly the genetic mother),
which they had fertilized with the husband's sperm. The resulting embryos
were then transferred to the wife/gestational mother's womb, resulting in
the birth of twins to the couple. When the couple later divorced, the
husband sought sole legal custody of the twins, claiming to be the "only
genetic and natural parent." In this "egg donation" case where the wife was
the gestational mother, the court found that she was the natural mother and
entitled to temporary custody, with permanent custody to be decided at a
later hearing. Dr. Benita McDonald never intended to be a surrogate for
another mother. The couple had intended to rear the children as their own.
Likewise, Ms. Fasano had no intention of being a surrogate for another
mother, and the Fasanos intended to rear the child as their own.

A gestational surrogate is always a gestational mother, but a
gestational mother need not be a gestational surrogate. She may be gestating
the embryo or ovum in order to call the child her own, as Dr. McDonald
did. Applying the "intent" standard from McDonald, which the Perry-
Rogers court discusses, would result in understanding this as an embryo
donation case. Following the reasoning of the McDonald precedent, Fasano
would have standing to make a claim for visitation, and even custody, in the
same way that Dr. McDonald did. The gestational surrogacy analogy is as
flawed as the switched babies, same-sex or stepparents, and even egg
donation analogies. None of these analogies reflects the biological
relationship present in the Fasano case.

77 Unif. Parentage Act § 702, 9B U.L.A. 354 (2000); and N.Y. Dom. Rel. Law § 73
(Consol. 2002). John C. Sheldon, a Maine judge, has recently proposed adaptations to these
statutes. Surrogate Mothers, Gestational Carriers, and a Pragmatic Adaptation of the
Uniform Parentage Act of 2000, 53 Me. L. Rev. 523 (2001).

78 608 N.Y.S.2d 477 (App. Div. 1994).

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The Appellate Division's decision is undercut by its use of faulty
analogies to support Donna Fasano's lack of standing. If all the arguments
by analogy are fatally flawed, then why were they convincing to the judges,
and why did the court unanimously resolve the dispute the way it did? I
believe that the court was swayed by a subconscious, or conscious but
unspoken, ideology that privileges genetics over all other forms of
relationships. This genetic essentialism is especially pernicious because it
reproduces gender biases, as I explain in Part IV.

3. Inconsistent Rhetoric About Maternity and Bonding

The key error, the one that logically and scientifically undermines
the opinion, is the court's conflicting rhetoric about the bonds between a
pregnant woman and her desired fetus. Judge Saxe uses blatantly
inconsistent and contradictory reasoning in his analysis, yet the entire court
unanimously agrees.

A pregnant woman's maternal bonds with her child in utero are
powerful.7 9 This bonding continues to increase during the pregnancy.80 As
Ilana Hurwitz explains about the prenantal, mother-to-fetus bond, based on
her extensive research:

Researchers have attempted to document particular incidents
during pregnancy or behaviors of a pregnant woman that foster a
bond between mother and fetus. Theorists have identified
accelerated maternal attachment after sensory stimulation such as
quickening, the mother's experience of fetal movement, maternal
counting of fetal movements, and maternal viewing of early fetus
by means of ultrasound imaging. Some researchers have pointed
out associative behaviors with the unborn child that assist
mothers to begin the attachment process, such as verbal
communication, stomach rubbing, and visualizing what the baby

79 Phyllis Chessler, Sacred Bond: The Legacy of Baby M (1988); Robin Fox,
Reproduction and Succession: Studies, in Anthropology, Law and Society 71-79 (1993);
John Lawrence Hill, What Does It Mean To Be A Parent? The Claims of Biology as a Basis
for Parental Rights 66 N.Y.U. L. Rev. 353, 397 (1991); Ilana Hurwitz, Collaborative
Reproduction: Finding the Child in the Maze of Legal Motherhood, 33 Conn. L. Rev. 127,
157-67 (2000); R. Brian Oxman, Maternal-Fetal Relationships and Nongenetic Surrogates,
33 Jurimetrics J. 387, 424 (1993); Scott B. Rae, Parental Rights and the Definition of
Motherhood in Surrogate Motherhood, 3 S. Cal. Rev. L. & Women's Stud. 219, 245-46
(1994).

80 The process of bonding between a gestational mother and her fetus is called

attachment. Carolyn Lerum et al., The Relationship of Maternal Age, Quickening, and
Physical Symptoms of Pregnancy to the Development of Maternal Fetal Attachment 16
Birth 1, 13 (1989). Scientific and psychological evidence suggests that attachment begins
early in pregnancy as a result of physiological and psychological changes to the gestating
mother. Mecca A. Cranley, Development of a Tool for the Measurement of Maternal
Attachment During Pregnancy, 30 Nursing Research 5, 281 (1981).

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Columbia Journal of Gender and Law

will look like. Researchers have also identified factors that
negatively impact maternal-fetal attachment including depression
and anxiety of the gestational mother, low levels of social support
and high levels of control, domination and criticism from the
mother's partner.

One can draw evidence of prenatal bonding from the
fact that women who suffer loss of pregnancy through
miscarriage or elective termination of pregnancy for genetic
reasons experience the grief of bereavement. Studies show that
71% to 75% of women who miscarry perceive the miscarriage as
loss of a baby. Researchers have identified typical grief
characteristics experienced by the mother after prenatal loss,
including despair, anger, hostility, guilt, loss of control,
rumination, depersonalization, somatic symptoms, and death
anxiety. One can extrapolate from this evidence that pregnant
women can, and many do, form bonds with their fetuses during

81
pregnancy.

The Perry-Rogers v. Fasano court acknowledges "that a bond may
well develop between a gestational mother and the infant she carried,
before, during and immediately after the birth."82 In addition, the signed
agreement between both sets of parents acknowledged that bond and was
recognized by the lower court.83 When the opinion's rhetoric is analyzed,
however, those declarations become mere lip service to the scholarship on
point. 4 The court immediately concludes that "the suggested existence of a
bond is not enough under the present circumstances" 85 to afford the Fasanos
standing as parents. Yet Alice Noble-Allgire, cited by the court, tells us:

81 Hurwitz, supra note 61, at 159-60 (footnotes omitted).

82 715 N.Y.S.2d 19,26 (App. Div. 2000).

83 id.

84 The court cites Alice M. Noble-Allgire, Switched at the Fertility Clinic:
Determining Maternal Rights When a Child is Born from Stolen or Misdelivered Genetic
Material 64 Mo. L. Rev. 517 (1999) (cited in Perry-Rogers, 715 N.Y.S.2d. at 26). For more
scholarship on the maternal bond with fetuses/children in utero, see also Embodying
Bioethics: Recent Feminist Advances (Laura M. Purdy & Anne Donchin eds., 1999);
Barbara Katz Rothman, Recreating Motherhood: Ideology and Technology in a Patriarchal
Society (1989); Marie Ashe, Law-Language of Maternity: Discourse Holding Nature in
Contempt, 22 New Eng. L. Rev. 521 (1988); Marie Ashe, Zig-Zag Stitching and the
Seamless Web: Thought on 'Reproduction' and the Law, 13 Nova L. Rev. 355 (1989); Vicki
C. Jackson, Baby M and the Question of Parenthood, 76 Geo. L.J. 1811, 1820 (1988);
Rebecca S. Snyder, Reproductive Technology and Stolen Ova: Who is the Mother?, 16 Law
& Ineq. 289 (1998); Note, Rethinking (M)otherhood: Feminist Theory and State Regulation
of Pregnancy, 103 Harv. L. Rev. 1325 (1990).

85 Perry-Rogers, 715 N.Y.S.2d at 26.

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2003] Genes, Parents, and ARTs

[Al woman who mistakenly gestates someone else's embryo is
likely to experience the same prenatal bonding as a surrogate
mother and, therefore, suffer from the same psychological impact
of relinquishing the child after birth. In fact, the impact may be
even greater in the case of switched genetic material than in the
voluntary surrogacy context because in the latter scenario, the
surrogate mother entered into the arrangement with knowledge
that she was carrying the child for someone else, [whereas in the
case of switched embryos, the gestating mother believes she is
gestating her own child.]8 6

Despite referring to Noble-Allgire's scholarship, the court asserts that "any
bonding on the part of Akeil to his gestational mother and her family was a
direct result of the Fasanos' failure to take timely action upon being
informed of the clinic's admitted error.,8 7 The blatant contradictions in the
rhetoric are unacknowledged.

Furthermore, the court suddenly ignores the mutuality of bond
between a pregnant woman and her fetus88 and how Donna Fasano became
pregnant in the first place. Like the Rogerses, the Fasanos desperately
desired to become parents. Like all couples engaged in assisted
reproductive technologies, the Fasanos, no doubt, waited with bated breath
to learn whether the pregnancy "took." Like other women who have
achieved pregnancy after a difficult struggle, the excitement of the

86 Noble-Allgire, supra note 84, at 566 (bracketed material added to clarify the

meaning of the quotation).
87 Perry-Rogers 715 N.Y.S.2d at 26.

88 The in utero bond is mutual in that the fetus bonds with the mother as the mother

bonds with the fetus. A fetus feels the pregnant woman's every move; her every emotion
releases hormones that affect the fetus. Fetuses hear their mother's voices and react to what
their mothers eat and imbibe. Hurwitz, Collaborative Reproduction: Finding the Child in the
Maze of Legal Motherhood, supra note 61 at 162-63 nn. 189-93 (2000), reports:

It is documented that a fetus is able to hear, sense, and learn prior to
birth. It is also documented that children synchronize their biologic
rhythms to the gestational mother. In addition, a mother's emotions and
psychological experiences during pregnancy can affect a fetus in utero
and after birth. Research results indicate that a mother's negative attitude
toward pregnancy and her developing fetus can lead to emotional
disturbance in her child. Researchers also assert that initial infant-mother
attachment is at risk when a mother is prejudiced by her prenatal
experiences of stress and by negative feelings about pregnancy and the
developing child. (footnotes omitted).

Some of the scientific literature supporting the idea that a fetus bonds with its
mother in utero includes Madgy S. Mikhail, et al., The Effect of Fetal Movement Counting
on Maternal Attachment to Fetus, 165 Am. J. Obstetrics & Gynecology 988 (1991); and
Byron England & Ellen A. Farber, Infant-Mother Attachment: Factors Related to its
Development and Changes over Time, 55 Child Dev. 753 (1984).



Columbia Journal of Gender and Law

pregnancy promotes bonding with the fetuses immediately, even though the
pregnant woman may realize she faces the dangers of loss from miscarriage.

We can only speculate that Donna Fasano reacted to her pregnancy
in the same way many other pregnant women do. First of all, Fasano was
aware of her pregnancy before she was informed of the clinic error. She
lived with the joy of having achieved this hard-won pregnancy day and
night. Pregnancy is a twenty-four hours a day, seven days a week
condition.89 She also probably lived with the fear of having a miscarriage.
Second, although early in her pregnancy the clinic informed her that they
made a mistake, all through her pregnancy she did not know for certain
whether or not both babies were her genetic children. Of the embryos
transferred to her womb, the other couple's embryo could have been one
that did not implant. Since more than one of her and her husband's embryos
had been transplanted in addition to the Rogerses', she could have been
carrying two of her own genetic children.

Third, surely the court did not mean that Fasano was obligated to
avoid the in utero bond by identifying9° and selectively aborting 9' the

89 Hurwitz put it well when she described the physical contributions of a

gestational mother:

[A gestational mother is] the one who may have to undergo the
discomfort of nausea, exhaustion, water retention, varicose veins,
bladder pressure, sleepless nights, physical distortion as the stomach
swells, repeated medical check-ups and, ultimately, the pain of
contractions and labor. Pregnancy is a constant state. There is no relief
from the physical demands from the moment of conception until well
after childbirth, when the body has had an opportunity to recover. The
gestational mother's contribution in the procreative process is
monumental.

Hurwitz, supra note 61, at 158 (footnote omitted).
90 Although she could have had amniocentesis, the record contains no evidence

that she chose to do that. Amniocentesis creates a risk of miscarriage and/or damage to the
fetus, so many mothers, even mothers with pregnancies that are "risky," choose not to
undergo the procedure. In addition, in American jurisprudence, we now respect the
autonomy of mothers to refuse to consent to intrusive procedures, even for the alleged
benefit of the fetus they carry. See In re A.C., 573 A.2d 1235 (D.C. 1990); Rosamund Scott,
Rights, Duties and the Body: Law and Ethics of the Matemal-Fetal Conflict (2002).
Amniocentesis in this case would not have been for the benefit of the fetus or the mother, but
only for the benefit of third parties because a fourth or fifth party made an error. Here, the
court seems to have wanted Fasano to do something, maybe something like amniocentesis
during her pregnancy, for the benefit of another couple who are complete strangers. Courts
generally will not override one party's autonomy for another's medical (or in this case,
psychological) need, even in life-threatening situations and when they are relatives. See, e.g.,
McFall v. Shimp, 10 Pa. D & C.3d 90 (Com. Pl. 1978). But see Strunk v. Strunk, 445
S.W.2d 145 (Ky. 1969) (where a court approved a mother's decision that her mentally
disabled son, who was incapable of consent, donate one of his kidneys to his brother). No
cases have ever required this kind of an intrusion for the benefit of a stranger.

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Genes, Parents, and ARTs

Rogerses' genetic embryo/fetus, with the consequent risk of miscarrying her
own genetic fetus. (I imagine that the Rogerses would not have preferred
that option, for that really is the Solomonic decision of killing the baby so
the parents do not fight over it.) Finally, this pregnancy was something
Fasano longed for. She had made physical and financial sacrifices in order
to become pregnant. We ought not fault her for concluding that she was not
going to "waste" the joy of the pregnancy by worrying about whether both
fetuses were her genetic progeny and by consciously trying not to bond with
them. I imagine that Donna Fasano knew the fetuses were "hers" because
she could feel them growing inside of her (regardless of genetics). 92 When
the growing babies moved or kicked in her belly, there was no way she
could know which one, if any, she was supposed to bond with and which
one a court would punish her for bonding with. She had no clues about
which baby's feet were getting under her ribs or which baby made her
uncomfortable every time she tried to lie on her side. It would be nearly
impossible for a mother to choose to bond with one of two twins in utero
but not with the other.

The court's understanding of Fasano's experience is terribly
misguided. To ask Fasano-a woman who sought out ARTs and was
willing to endure the consequent risk of a multiple birth resulting from use
of the technologies-to decide not to form a bond with her fetuses because
they may not be hers is unrealistic, unnatural, and practically unthinkable
(except, perhaps, to the appeals court). And then, after having carried both
babies for nine months, having bonded with them, and having gone through
the labor and birth of both children, the court concludes that Fasano should
have given up one of her children.

The court's rhetoric and references recognize that the bond between
pregnant women and their fetuses is a fact of nature. Nonetheless, the court
undermines its own finding by denying standing to the Fasanos because
they wrongly formed a bond with the child in utero.93

In order to punish Donna Fasano (by denying her any rights to visit
with Joseph/Akeil) for establishing the ex utero bond, the court must have
concluded that regardless of the in utero bond, she should have refused to
continue to bond with the child she bore after its birth. This very unusual

91 In cases of multiple simultaneous gestations, sometimes doctors recommend that

women undergo a process of selective or elective reduction. Mary V. Rorty, Feminism and
Elective Fetal Reduction, in Embodying Bioethics: Recent Feminist Advances 159 (Donchin
& Purdy eds., 1999). Rorty reports that many doctors refuse to reduce multifetal pregnancies
when there are only twins, as in this case, but some doctors will reduce a twin pregnancy.
She also cites studies that show a risk of loss of the entire gestation from the procedure.

92 Had she miscarried during the pregnancy, she would have grieved the loss of her

two "babies," not one.

93 "Defendants cannot be permitted to purposefully act in such a way as to create a
bond, and then rely upon it for their assertion of rights to which they would not otherwise be
entitled." Perry-Rogers v. Fasano, 715 N.Y.S.2d 19, 26 (App. Div. 2000).

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Columbia Journal of Gender and Law

conclusion, especially in the absence of a prior contractual surrogacy
agreement to relinquish the child, requires further excavation of the court's
probable underlying assumptions.

The only way I can understand the court reaching this conclusion is
that there must have been something in the child's physical appearance that
the court thought signaled to Fasano that she had to sever her relationship
with this baby. My conclusion is that the court faults Fasano for being a
white woman who bonds with her dark-skinned child. Once she saw that the
child she bore was African-American, according to the court, she ought to
have denied any natural bonds with him and given him away. If
Joseph/Akeil's racial physiognomy were "white," Fasano would likely not
have been required to give him away. The court made no such
determinations about Vincent's fate, even though he could have been the
product of an ART mistake as well.

In essence, the court implies that Fasano should not form a bond
with Joseph/Akeil because of their racial difference. Donna Fasano's bond
with the baby after his birth, notwithstanding race, led to the court's
determination that she has no standing to seek visitation. The court's move
violates our core notions of fairness and justice. No doubt the court would
say that its decision does not turn on the baby's color or race, but rather the
fact that Fasano knew one or more of her babies might be the genetic
children of another couple. Yet the court does not speak of a legal duty of
parents in all cases of ARTs to have their children genetically tested to
determine parentage before ex utero bonds are formed. We do not require
other mothers to get their children genetically tested before they bond with
them. We have serious reasons to challenge this court's approach if it is
premised on the assumption that a white mother ought not bond with a child
who appears to be African-American.

The inconsistent rhetoric about maternal bonding in this opinion
accentuates the flaws already noted in the Perry-Rogers v. Fasano appellate
court decision. Without openly addressing the gender issues which are so
formidable in this case, the court is bound to get tongue-tied. It is essential
to understand the science and culture of maternal bonding to reach a fair
result in this complex case. It is also essential to analyze the role that race
plays in assessing the appropriateness of the ex utero bond between mother
and child. I will take up more of the gender- and race-based issues that arise
if the court defaults to a genetics-based analysis in the next section, but first
I will complete my critique of the Appellate Division's decision in this case.

4. In Utero "Twin" as "Genetic Stranger"

Last, but not least, the Perry-Rogers court finds that Vincent, the
Fasanos' genetic child, does not have standing as a sibling to claim
visitation rights with Joseph/Akeil, because the statute defines a sibling as

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Genes, Parents, and ARTs

"related by whole or half-blood"9 4 and Vincent is neither. Although the
court does not use this language, here the court is reprising the "genetic
stranger" argument that it rejected in the case of the mother. Here, the
genetic strangers are children who grew together in the same womb at the
same time. Fraternal twins are genetically different, but not considered less
twins than identical twins who are genetically alike. They are twins because
they grew together in the womb. They are not twins solely because they
have the same parents. If having the same parents makes two children
twins, then we would call brothers and sisters (all siblings) twins. We do
not do that. In truth, prior to this case, there had never before been any
doubt in the law that twins are siblings, even if the statute does not so define
the term. The absence of this statutory definition may be due to the fact that
the legislature assumed that it goes without saying that twins are siblings.

In addition, the statute speaks of "whole or half-blood" rather than
of genetic relationships. Anthropologically and legally, prior to genetic
testing, biological relationships or kinship relationships were defined
through "blood lines." The legislature, referring to "blood" relations in the
statute, was probably referring to these biological kinship relationships. But
the concept and use of the term blood to represent biological kinship
relations is especially interesting as applied to this case. A more complex
meaning of blood as a metaphor or trope for kinship arises upon deeper
examination. If being of the same "blood" is what constitutes kinship
(rather than being of the same genes), then Vincent and Joseph/Akeil may
rightly be deemed "blood brothers." Both children were nurtured entirely by
the same "blood" from Donna Fasano for nine months. They were wholly
nurtured by her blood and it was her whole blood. Arguably this makes
them of "whole blood" within the clear language of the statute. Nothing in
the language "by whole or half-blood" refers to common genetics rather
than sharing one womb using the same blood for nourishment and oxygen.
Surely this blood relationship should be enough to give Vincent standing to
claim visitation. Instead, in the court's interpretation of the statute, it
unwittingly falls back on assumptions that blood means genetics and
genetics are the essence of a person. By applying these genetic essentialist
assumptions, the court finds that the twins are strangers and not entitled to
visit one another as brothers.

IV. THE DEEPER SUBSTANTIVE ISSUES IN PERRY-ROGERS V.
FASANO

A. Unanswered Questions

What really is at issue in the Perry-Rogers v. Fasano case is the
degree to which genetics ought to define parenthood in our era of assisted

94 N.Y. Dom. Rel. Law § 71(Consol. 2002).

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Columbia Journal of Gender and Law

reproductive technologies. The court makes false stabs at the issue, but
ultimately only grazes it, instead resting its decision on a shaky finding of
no standing. Had it granted the Fasanos standing as parents (at a minimum,
had it granted Donna Fasano standing as a mother), the court would have
been required to decide the contested visitation claim based on a "best
interests of the child" analysis, according to New York law.95 Since the
parties reached an agreement about visitation that included a specific
paragraph clearly acknowledging the importance of the child's continued
relationship with the Fasanos, 96 the court had a mutually agreed upon basis
regarding Joseph/Akeil's best interests. This case was easier than it could
have been if the parties had not already worked out the transfer of custody
or visitation agreement.

The end result imposed by the court, with each set of parents
ending up with one twin, suggests a Solomonic split-the-baby decision,9 7

but unlike Solomon's story, in this case the split ostensibly helps the
parents, rather than kills the baby (although it "kills the twins"). But to look
at this case as one about two children who are equally divided among two
sets of parents distorts the analysis. This case is about one of the children
only, about Joseph/Akeil. The parents had worked out a more Solomon-like
decision than the court. In their visitation agreement, each set of parents got
a piece of the child's time and affection, and the child got the benefit of
both couples' love, time, and attention. In the court's resolution, the child is
no longer "split" between the couples, but the child is also no longer the
beneficiary of both families' attention and love. The child loses all
connection to his birth parent and twin sibling, despite their ardent desire
for further contact. The child's interests seem to have been subordinated to
some grander principle, though that principle is not articulated.
Paradoxically, Joseph/Akeil was deprived of his birth family and sibling in

95 N.Y. Dom. Rel. Law § 70 (Consol. 2002).

96 The agreement stated:

All parties acknowledge that continued liberal visitation and contact
between Joseph and Vincent and the Fasanos is in the best interests of
Joseph. Deborah Perry-Rogers and Robert Rogers agree that they shall
exert every reasonable effort to maintain reasonable access and contact
between Joseph, Vincent and the Fasanos. All parties agree that they
shall foster a feeling of affection between the children and each other.
Deborah Perry-Rogers and Robert Rogers agree that they shall do
nothing which may estrange Joseph from the Fasanos.

Brief for Defendants-Respondents-Appellants (Fasanos) at 4, Perry-Rogers v.
Fas__o 715 N.Y.S.2d 19 (App. Div. 2000) (citing Record on Appeal, at 91-92).

97 The Solomonic aspect of the case is that there were twins and the court splits the
twins in two giving each couple one of the boys. While this may seem the most equitable
solution at first blush, it raises very complicated issues about multiple births, ART mistakes,
and infertility generally.

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Genes, Parents, and ARTs

the easier case where the court only had to decide about visitation, not
primary physical and legal custody, and the parties had negotiated a plan in
advance.

The much more difficult case would have been a dispute over legal
custody rather than just visitation. In that case the court would have had to
face squarely whether it is in the best interests of a child to be placed with
its genetic parents or its biological/social parents, when neither set of
parents has been shown to be unfit. Since the Appeals Court did not see fit
to order a "best interests" hearing in this case, I will proceed from the
premise that each set of parents' homes and home-lives were equivalent.

The Appellate Division decision touches on some of the deeper
issues and implications of the case in its standing analysis. In a footnote it
acknowledges that in some cases both the gestational and genetic mothers
may be parents for "certain purposes. 98 In the text the court indicates that it
will not let genetics be its sole guide.99 It also refuses to estop the Fasanos
from making claims based on their parenthood, merely because they
acknowledged the Rogerses as their child's genetic progenitors:

[The Fasanos' lack of standing was] not because we necessarily
accept the broad premise that in any situation where a parent,
possessed of that status by virtue of having borne and given birth
to a child, acknowledges another couple's entitlement to the
status of parent by virtue of their having provided the genetic
materials that created the child, the birth parent automatically
gives up all parental rights.' 0

One could easily be deceived into thinking that the court was about to make
a just decision after carefully incorporating all the relevant concerns into its
analysis. However, that would prove to be a misconception.

The court's subconscious or silent preference for genetics over
gestation prevails, regardless of any rhetoric it uses to the contrary. Finding
the Fasanos had no standing was the same as finding that the Rogerses were
the sole and appropriate parents. The genetic parents win completely. No
other parents could even come before the court to argue for the legitimacy
of their claims. Certainly the court realized that its resolution foreclosed the
Fasanos from visitation, and therefore foreclosed them from having any
relationship with their child. As I suggested earlier, the injustice of this

98 "It is certainly conceivable that under some other circumstances, we would have

to treat both genetic and gestational mothers as parents, at least for certain purposes." Perry-
Roger , 715 N.Y.S.2d at 25 n.1.

99 "[I]t is simply inappropriate to render any determination solely as a consequence
of genetics." Id. at 24.

"o Id. at 25 (footnote omitted).

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36 Columbia Journal of Gender and Law [Vol. 12:1

decision is compounded because the court makes this decision based on a
procedural analysis rather than a substantive one.

We need reasoned opinions on the substantive issues of this case.
These issues include genetic essentialism, a gendered analysis of
motherhood, and even more submerged issues of the role of race and class
in family disputes arising from the use of ARTs. General issues about the
reconceptualization of legal parenthood in a post-ART age loom large in
this case. The court has an obligation to explain why even though it
acknowledges the bonds between a pregnant woman and her fetus, it
ignores those bonds entirely in reaching its decision. If the court denies its
reliance on biological determinism, or "genetic essentialism," but reaches a
result only explainable by genetic ties, it needs to be explicit about its
reasoning.'O° At a minimum the court must explain why it preferred genetic
evidence of family status over biological (gestational), cultural notions of
family and kinship. This "no standing" decision fails miserably in
explaining its rationale and the result of completely cutting off the child
from his birth family.

Additionally, there are open questions on ARTs and the relatively
frequent multiple births that result from them. There is no more than a
cursory discussion of the role ARTs play in creating new legal analyses,
particularly with their risks of serious errors and the risks of multiple births
in such delicate matters of creation and reproduction. Furthermore, the court
misses the opportunity to discuss the appropriateness of applying the New
York Domestic Relations law about standing to parties whose familial
relationships were never conceived of by the legislatures that drafted the
laws. 02 Perhaps the court should assess whether reproduction has become

10' For a discussion labeling the primacy of genetics in family relations as "genetic

essentialism," see Nelkin & Lindee, Genetic Essentialism Applied, in The DNA Mystique:
The Gene as a Cultural Icon, supra note 13.

102 See In re Estate of Kolacy, 108 A.2d 657 (N.J. Super. Ct, Ch. Div. 2000).

Accord, Woodward v. Commissioner of Social Security, 760 N.E.2d 257, 271(Mass. 2002):

For the second time this term, we have been confronted with novel
questions involving the fights of children born from assistive
reproductive technologies. See Culliton v. Beth Israel Deaconess Med.
Ctr., 756 N.E.2d 1133 (Mass. 2001). As these technologies advance, the
number of children they produce will continue to multiply. So, too, will
the complex moral, legal, social, and ethical questions that surround their
birth. The questions present in this case cry out for lengthy, careful
examination outside the adversary process, which can only address the
specific circumstances of each controversy that presents itself. They
demand a comprehensive response reflecting the considered will of the
people.

In the absence of statutory directives, we have answered the
certified question by identifying and harmonizing the important State
interests implicated therein in a manner that advances the Legislature's
over-all purposes. In so doing, we conclude that limited circumstances
may exist, consistent with the mandates of our Legislature, in which



Genes, Parents, and ARTs

so commodified and market-based that contract or property law serve as
better models for analysis than family law. Though family law makes the
most sense because we are discussing parenting and familial relationships,
ARTs inject such unusual dimensions into the relational dynamics of
families that much of family law's reasoning fails to resolve these new
dilemmas. Sometimes we suffer more from shoving these square pegs into
round holes than from creating an entirely new vessel that fits all the pieces.

Finally, courts need to determine how to proceed and who should
bear the loss of a child when the tortious conduct of an ART provider harms
two distinct, but equally innocent, parties. We need reasoned decisions from
courts about whether tort law or family law or some new approach should
inform us in these cases. Resolution of these issues is essential. A court's
failure to look into these complex matters leaves future victims of ART
mistakes doubly harmed. New victims, and we know it is inevitable that
there will be new victims, will have to suffer the physical, emotional, and
life-altering consequences of the mistake, and then they will suffer by
having to slog through this legal morass without any advice or guidance.
The court was not justified in denuding this legal dispute of all its
underlying, substantive issues and only addressing formal procedural
matters almost without regard to the peculiarities of the issues.

In the rest of this essay, I offer a challenge to the Perry-Rogers v.
Fasano court's and our culture's new bias in favor of genetics as a
determinant of natural and legal motherhood. Recent cases, like Johnson v.
Calvert, 10 3 Belsito v. Clark,' °4 Soos v. Superior Court,'05 In the Interest of
O.G.M., 10 6 Arrendondo by Arrendondo v. Nodelman,10 7 Culliton v. Beth

posthumously conceived children may enjoy the inheritance rights of
"issue" under our intestacy law. These limited circumstances exist
where, as a threshold matter, the surviving parent or the child's other
legal representative demonstrates a genetic relationship between the
child and the decedent.
103 851 P.2d 776 (Cal. 1993) (genetic, intending parents recognized as legal

parents, instead of the gestating mother).

'04 644 N.E.2d 760 (Ohio Ct. App. 1994) (genetic parents recognized as legal
parents).

0'5 897 P.2d 1356 (Ariz. Ct. App. 1994) (genetic mother given same right as

genetic father to prove legal parenthood, despite claim of gestational mother to legal
motherhood).

106 988 S.W.2d 473 (Tex. Ct. App. 1999), review dismissed (June 15, 2000)

(genetic father given right to be declared father of child of assisted reproductive technology
despite gestational/genetic mother's claim that he served as sperm donor only).

107 622 N.Y.S.2d 181 (Sup. Ct. 1994) (in an action to amend children's birth
certificate, the Supreme Court found that the woman who provided the egg, and hence the
genes, in a gestational surrogacy case, was the mother, rather than the gestational surrogate).

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Columbia Journal of Gender and Law

Israel Deaconess Med. Ctr., 0
8 and this Perry-Rogers v. Fasano case, seem

to favor a genetics-based analysis of parenthood, despite at least one party's
reasonable claim for a different approach. In this essay I urge courts to
reject such an exclusive, genetics-based analysis. In the next subsections, I
will examine some of the issues that the court in Perry-Rogers v. Fasano
ignored. First, I will discuss how a genetics-based definition of parenthood
promotes an ideology of "genetic essentialism," and then assess how
genetic essentialism masks the underlying issues of sex bias in this case.'0 9

Alternatively, if the court is not relying on genetic essentialism, then I argue
that it necessarily was engaging in an unconscious race-based assessment of

'08 756 N.E.2d 1133 (Mass. 2001) (ordering that the genetics parents' names go on

the birth certificate, rather than the gestational mother's name, where "the gestational carrier
agrees with the orders sought." Id. at 1138.).

109 Socio-economic class also plays a powerful role in an genetics-based analysis

of motherhood growing out of the use of ARTs. When conception and childbirth occur
naturally, a genetics-based analysis of motherhood does not reflect class biases. Fertile
couples, no matter what their economic status, can create pregnancies in which the genetic
mother is the same person as the gestating mother, so that legal biological motherhood is not
in dispute. However, where ARTs are utilized, a genetics-based analysis reveals deep class-
based biases. Laurie Nsiah-Jefferson & Elaine J. Hall, Reproductive Technology:
Perspectives and Implications for Low-Income Women and Women of Color in Healing
Technology: Feminist Perspectives 93 (Kathryn Strother Ratcliff et al. eds., 1989); Dorothy
Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (1997).
Whereas fertile women of any class can be gestating mothers, only infertile women with
significant wealth can engage in the assisted reproductive technologies that allow one
woman's ova or embryo to be transferred to another woman's womb. "In Massachusetts,
where infertility care is mandated, the costs, with [ARTs] for a successful pregnancy is
$39,375, ... other estimates range from $60,000-4800,000, per successful pregnancy." Hazel
Glenn Beh, Sex, Sexual Pleasure, and Reproduction: Health Insurers Don't Want You to Do
Those Nasty Things, 13, 173 n.362 (1998) (citations omitted), cited in Sherri A. Jason,
Comment, "Loving Infertile Couple Seeks Woman Age 18-31 to Help Have Baby. $6,500
Plus Expenses and a Gift": Should We Regulate the Use of Assisted Reproductive
Technologies by Older Women? 11 Alb. L.J. Sci. & Tech. 287 (2001).

Even employed women with health insurance, clearly wealthier women than
women without full-time jobs providing health insurance, may not be able to afford these
technologies. Most health insurance plans exclude coverage for infertility treatment and
assisted reproductive technologies. See, e.g., Saks v. Franklin Covey, Co., 117 F. Supp. 2d
318 (S.D.N.Y. 2000), aff'd in part and remanded, _ F.3d _ (2003), 2003 WL 122396;
Thomas D. Flanigan, Assisted Reproductive Technologies and Insurance under the
Americans with Disabilities Act of 1990 38 Brandeis L.J. 777 (2000); Shorge Sato, A Little
Bit Disabled: Infertility and the Americans With Disabilities Act, 5 N.Y.U. J. Legis. & Pub.
Pol'y 189 (2001/2002). But see Witcraft v. Sunstrand Health and Disability Group Benefit
Plan. 420 N.W.2d 785, 788 (Iowa 1988) (ruling that infertility was an illness covered by a
health care plan). Only a few states mandate coverage for infertility treatments. See
American Society for Reproductive Medicine, State Infertility Insurance Laws, at
http://www.asrm.org/Patients/insur.html (last visited Sept. 27, 2002). At best, a small
proportion of infertile women have adequate resources to purchase the assisted reproductive
technologies that would allow them to have genetically related children by using other
women's bodies. Despite the importance of class-based issues in ARTs, they are not the
focus of this essay.

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parenthood. The court's race-based assumptions may have skewed its
decision and caused the unjust result in the case. The other matters raised in
this subsection must be saved for another day.

B. A Genetics-Based Analysis (or Genetic Essentialism)

The court in Perry-Rogers v. Fasano clearly states that genetic ties
are not the deciding factor in this case, and then, without even giving the
Fasanos a chance to make their argument about gestational or biological
motherhood, decides in favor of the genetic parents. The court is apparently
so sure that the genetic mother should win that it is willing to reach that
conclusion circuitously through a dubious "standing" analysis. Furthermore,
the court precludes even visitation with the gestational mother without
tackling the more complicated substantive issues raised above. The court's
decision evinces its commitment to a simplistic, genetics-based analysis of
legal and biological motherhood.

I argue that the better test of biological motherhood, if we must
privilege one of a child's biological mothers in a contest between them, is to
presume biological motherhood, and hence legal motherhood, based on the
gestating and birthing of a child." ° The court implicitly concludes that
genetics is the better basis for biological and legal parenthood. Perhaps, in
reaching this result, our culture's relatively recent addiction to science and
technology overwhelmed our fundamental cultural understandings of
motherhood that long preceded this addiction.

While science- and techno-philia clearly motivate part of the turn to
genetics, there are more subtle motivations for this increasing reliance on
genetics in law and culture, particularly in the realm of reproduction.
Dorothy Nelkin and M. Susan Lindee analyze the way "the gene" has
become the new "sacred essence" of human beings in our culture."' In their
study of the cultural significance of the gene, they assert that the gene has
become the equivalent of the "soul, assum[ing] a nearly spiritual
importance as a powerful and sacred object through which human life and
fate can be explained and understood. '12 They illustrate how our cultural
image of the gene has caused us to move from a primarily social-
environmental analysis of human behavior to an individualized, genetics-
based analysis in many areas of our lives. We use DNA fingerprinting to

110 Of course, biological motherhood ought to be only one factor in determining
legal motherhood. The best approach is to recognize multiple biological and legal mothers
when multiple mothers create and care for the children.

1 Nelkin & Lindee, Genetic Essentialism Applied, in The DNA Mystique: The
Gene as a Cultural Icon, supra note 13.

112 Id. at 57. The gene is "an almost supernatural entity that has the power to define
identity, determine human affairs, dictate human relationships, and explain social problems."
Id. at 193.

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identify criminals or the remains of servicemen,113 and genetic testing to
anticipate health problems in children and adults; to assess fitness for work;
to identify parents for purposes of support, custody, and visitation; and to
explain alcoholism, violent behavior, and even extra-marital affairs. Genetic
analysis now includes behaviors and personality traits' 14 as well as physical
states. 15 This trend has more insidious effects than just limiting the
opportunities of individuals. Nelkin and Lindee worry that "[g]enetic
explanations of behavior and disease appear to locate social problems in the
individual rather than in society.... They are thus a convenient way to
address troubling social issues."' 16 In some ways, the Perry-Rogers v.
Fasano case adapts this philosophy by ultimately using genetics as a
convenient way to address the troubling social issue of ARTs, identity, and
human relations.

Biological determinism, 1 7 or "genetic essentialism," as Nelkin and
Lindee call it, is the belief that the essence of a human being is his or her
genetic code, the DNA." 8 It is a belief that most of who we are is pre-

113 Mayfield v. Dalton, 901 F. Supp. 300 (D. Haw. 1995).

114 See, e.g., Judith Rich Harris, The Nurture Assumption: Why Children Turn Out

the Way They Do (1998). A special thanks goes to Professor Sarah Ramsey for connecting
this book to my research.

"5 Nelkin & Lindee, supra note 13, at Ch. 5.

161d. at 194.

117 Biological determinism is also called genetic determinism by some scholars.

For some descriptions of these concepts, see Ruth Hubbard & Elijah Wald, Exploding the
Gene Myth (1993); Richard C. Lewontin, Steven Rose & Leon J. Kamin, Not in Our Genes:
Biology, Ideology, and Human Nature (1984) (arguing against biological determinism).
Biological determinists conclude:

[T]hat human lives and actions are inevitable consequences of the
biochemical properties of the cells that make up the individual; and these
characteristics are uniquely determined by the constituents of the genes
possessed by each individual. Ultimately, all human behavior - hence all
human society - is governed by a chain of determinants that runs from
the gene to the individual to the sum of the behaviors of all individuals.
The determinists would have it, then, that human nature is fixed by our
genes...
What is more, biology, or "genetic inheritance," is always invoked as an
expression of inevitability. What is biological is given by nature and
proved by science. There can be no argument with biology, for it is
unchangeable.

Lewontin, supra at 6. In arguing against genetic determinism, Glenn McGee explains that,
"Genetic determinism is the view which holds that everything ... about human identity is
determined at the moment of conception and encoded in DNA." Glenn McGee, The Perfect
Baby: A Praigmatic Approach to Genetics 59 (1997). I will use the term genetic essentialism
instead of biological determinism, but they represent the same ideology.

118 This ideology is called "gene-mania" by Buchanan et al., From Chance to

Choice 13 (2000); "geneticization" by Mary Anne Bobinski, Genetics and Reproductive



Genes, Parents, and ARTs

programmed by our genetic codes, despite our environments or
relationships or learning. Genetics, in this ideological approach, defines our
family and our history and predicts our futures. Though not so named,
genetic essentialism is what Aldous Huxley was satirizing and warning
against in Brave New World." 9 More recently, the film GATTACA
critiqued genetic essentialism.' 20 According to Nelkin and Lindee, despite
these poignant critiques, genetic essentialism continues to take hold as a
dominant cultural ideology in society.

Genetic information can assist us in treating illnesses and
identifying bodies. Its usefulness in these areas, though, does not translate
into usefulness in determining legal parenthood. The use of genetics as the
sole determinant of parenthood elides the biological with the social,
cultural, legal, and political. How families are constituted by law is not a
scientific inquiry at all. Even if genetics tells us something about the
science of human kinship relationships through the contents of individual
cells, it certainly does not tell us all. On a purely scientific basis, it does not
address the organism as an organized system or collection of systems, the
organism's physiology, its interactions with the environment, its
developmental growth, or its interrelationships with other organisms or
beings. 2

1 In terms of parenthood, genetics does not address the roles of
pregnancy, labor, birth, and nurturance. And these are just the scientific or
biological components that are absent from genetic essentialism. One of the
gravest problems with genetic essentialism or genetic determinism is its
reductionism. Genetic analysis cannot tell us anything about the social
world, culture, politics, spirit, or mind.

Decision Making, in The Human Genome Project and the Future of Health Care 79, 107
(Murray et al. eds., 1996); and "genism" by George Annas, Genism, Racism, and the
Prospect of Genetic Genocide, as prepared for the World Conference against Racism, Racial
Discrimination, Xenophobia and Related Intolerance, Durban, South Africa, September 3,
2001, at http://www.bumc.bu.edui/www/sph/lw/pvl/genism.htm (last visited Oct. 10, 2002).
Alta Charo discusses how reductionist it is to use a biological determinism or genetics
approach. R. Alta Charo, Biological Determinism in Legal Decision Making: The Parent
Trap, 3 Tex. J. Women & L. 265, 269-72 (1994). Janet Dolgin examines how this ideology
"reduces personhood to DNA molecules." Janet Dolgin, Personhood, Discrimination, and the
New Genetics, 66 Brook. L. Rev. 755, 769 (2001). Discrimination against people based on
an ideology of genetic essentialism was called "geneticism" by Peter Medawar in 1969 to
refer to "the inappropriate genetic labeling of the variations between people." Abby
Lippman, The Human Genome Initiative and the Impact of Genetic Testing and Screening
Technologies: Article: Prenatal Genetic Testing and Screening: Constructing Needs and
Reinforcing Inequities, 17 Am. J.L. & Med. 15, 18 n.16 (1991); see also Susan M. Wolf,
Beyond "Genetic Discrimination": Toward the Broader Harm of Geneticism, 23 J.L. Med. &
Ethics 345 (1995).

1'9 Aldous Huxley, Brave New World (1932).

120 GATTACA (Columbia Pictures 1997).

121 Lenny Moss, What Genes Can't Do (2003) (advocating a developmental,

interactive, organizational theory of biology, rather than a monadic cellular, gene-based
understanding).

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I am not arguing that genes are irrelevant to who we are, nor that
the link between our genetic make-ups and some of our physical traits is not
scientifically supportable, nor that our genetic constitution is independent of
the characteristics we display. That there is a correlation between genes and
some physical attributes or traits seems indisputable. The mapping of the
human genome will certainly help fill in the gaps in our knowledge about
the extent to which genes affect, influence, and define us. 22 But genetic
essentialism claims more than correlations and addresses more than
physical attributes. To genetic essentialists, genes cause and control us; they
define who we are. "Genes 'R Us." Genetic essentialists argue that although
some of the natural facts about genes are not optimistic ones, it is foolish to
rail against them. Genetic diagnoses, genetic screening results, and genetic
definitions must be accepted. Science will not stop. If nothing else, it is
pragmatic to join the bandwagon. Genetic therapies and enhancements are
inevitable, so they say, as is human cloning, which may turn out to be the
most extreme form of genetic essentialism.

Nelkin and Lindee explain that genetic essentialism runs some
serious risks. People may feel trapped by their genes, in ways that do not
fairly represent their true potentials. Risks exist that genes will be seen as
causes rather than correlations, as probabilities rather than as possibilities,
as truths, rather than as predispositions.

The scientific concept of genetic predisposition assumes the
existence of a biological condition signaling that an individual
may suffer a future disease or behavioral aberration. But
predisposition in the clinical sense is a statistical risk calculation,
not a prediction. A person "predisposed" to cancer, for example,
may have biological qualities that heighten the odds that he or she
will develop cancer, in the same way that driving many miles
each day heightens one's odds of involvement in an automobile
accident. But many variables influence whether a person will
actually suffer from cancer. Terms such as "predisposed" or "at
risk" are understood by scientists to mean that the individual is
vulnerable to a disease that may or may not be expressed in the
future. In the quest to identify genetic predispositions, however,
the statistically driven concept of correlation is often reduced to
"cause." And possible future states, calculated by statistical
methods, are often defined as equivalent to current status.... [A]n
individual "at risk" may be regarded as deserving differential
treatment long before it is known whether or not the risk will
materialize. 1

23

122 See articles cited supra note 29.

123 Nelkin & Lindee, Genetic Essentialism Applied, in The DNA Mystique: The
Gene as a Cultural Icon), supra note 13.

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Genes, Parents, and ARTs

There are risks that people will try to control the genetic codes of
their children through preimplantation genetic diagnosis (PGD)12 4 and
genetic enhancement,125 thinking they can "design" their children. 26 As
with all technologies and sciences, we risk human error in reading genetic
tests, in manipulating genes, and in understanding the interrelationships
between one gene and another. There are also many other legitimate
concerns about genetic essentialism: privacy, employment discrimination,
health insurance, excuses or justifications for criminal conduct, and excuses
or justifications for social and economic stratification, to name a few. In this
essay, I am most concerned with what genetic essentialism does to our legal
understandings of reproduction and families, and what it might say about
sex and race. I save the other issues for another day.

C. Gender-Bias Issues in a Genetics-Based Approach of Parenthood

A genetics-based approach to legal familial rights will inevitably
privilege men over women. In the first instance a genetic trump card in
disputes over the custody of children created through ARTs does not seem
sex-biased at all. Both women and men contribute equally when it comes to
the genetic heritage of children. 127 A man's genetic contribution to an
embryo (one gamete called a sperm) is equal to a woman's genetic
contribution (one gamete called an ovum), so males would not be favored in
a genetic contest between contributors. The dispute in the Perry-Rogers v.
Fasano case was not about whether men should prevail over women in
genetics-based parenthood controversies, so how could a genetics-based
approach in that case reveal sex-bias? Deborah Perry-Rogers, the genetic

124 See Rick Weiss, Test-Tube Baby Born to Save Ill Sister Wash. Post, Oct. 3,

2000, at A0 1 for the story of Jack and Lisa Nash and the birth of their son, Adam, discussed
supra note 19. See also Meeks, supra note 32, at 6.

125 See Symposium, Genetic Technology: Social Values and Personal Autonomy in

the 21st Century 34 Wake Forest L. Rev. 561 (1999).
126 See, e.g., Glenn McGee, The Perfect Baby: A Pragmatic Approach to Genetics

(1997) (arguing that genetic enhancement and "designed" babies are "not-so-deadly sins,"
but more akin to educational policies or other things parents do to help their children).

127 At least this is true now. Speculation about children born of single-sex couples,
either two mothers or two fathers and a surrogate mother, or asexual reproduction through
cloning, abound. In these cases, the genetic contribution to the child may come from two
women or two men, and the union may be manipulated by technicians in vitro. See, e.g., Lee
M. Silver, Remaking Eden: How Genetic Engineering and Cloning Will Transform the
American Family (1998). A less technologically complicated means for two lesbians to have
a biological child together is for one to donate the ova and for the other to gestate the
embryo. But in these cases a donor sperm is required. See Anne Reichman Schiff, Solomonic
Decisions in Egg Donation: Unscrambling the Conundrum of Legal Maternity, 80 Iowa L.
Rev. 265 (1995) (arguing that in those cases, both women should be legally recognized as
mothers); Kyle C. Velte, Egging on Lesbian Maternity: The Legal Implications of Tri-
Gametic In Vitro Fertilization, 7 Am. U. J. Gender Soc. Pol'y & L. 431 (1999).

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Columbia Journal of Gender and Law

mother, prevailed over Donna Fasano, the gestational mother. If one woman
can defeat another woman's claims when using a genetics-based approach
to legal parenthood, how can a genetics-based analysis be male-biased?

The key to my argument is that a genetics-based analysis of
parenthood reinforces and replicates an understanding of reproduction
rooted in a male experience. Because a male's only biological contribution
to reproduction is his gene-carrying sperm, and because fathers are
increasingly being identified by DNA genetic tests, courts may believe that
parity requires that mothers be identified in the same way.128 If something
like this reasoning is dictating results in these cases, this false equality
between male and female status in reproduction displays a male-biased
perspective. Women who are genetic parents benefit from this approach, but
they only benefit if they are "like men" with respect to their biological
contributions in these ART cases 29-if they are genetic contributors to the
embryo.1 30 Women whose contributions to reproduction include gestation,
labor, and birth, are not valued in a genetics-based analysis of parenthood.
Genetic-based approaches to parenthood necessarily ignore one of the two
ways women may contribute to reproduction. Genetic definitions of
parenthood value what only men can contribute to reproduction (gametic
contribution) and do not value what only women can contribute (gestational
and birth contribution). Therefore, relying on genetics as the definition of
parenthood, particularly of legal motherhood, is fundamentally sex-biased.

The privileging-of-genetics problem only becomes an issue
between women when biological motherhood is bifurcated.' 3

1 Until the last

128 See Soos v. Superior Court. 897 P.2d 1356 (Ariz. Ct. App. 1994) (finding that

in a contest between genetic and gestational mothers it violates equal protection not to let the
genetic mother prove her legal parenthood by DNA testing in the same way that men may
prove their legal parenthood).

129 In fact, women are never really "like men" when it comes to biological

reproduction. Although a genetic mother and a genetic father can be compared in their equal
contributions of a single cell to the embryo, the biological intrusion necessary to take that
single cell differs markedly. Even the genetic contributor woman has a stronger biological
connection to the embryo than a genetic contributor man because of the intrusiveness of the
process of gamete retrieval on the woman's body.

130 Courts sometimes require that men and women participating in assisted

reproductive technologies be both genetic contributors and intending parents. See, e.g.,
Johnson v. Calvert, 851 P.2d 776 (Cal. 1993); Litowitz v. Litowitz, 10 P.3d 1086 (Wash. Ct.
App. 2000), rev'd, 48 P.3d 261 (Wash. 2002), amended by 2002 WL 31015235 (Wash. Sept.
10, 2002). The additional requirement of intention is not sex-biased and can be equally
achieved by men and women.

131 Since this discussion focuses on biological motherhood, it does not address

arguments concerning other forms of mothering: social motherhood, step-motherhood, foster
motherhood, adoptive motherhood, etc. The absence of these other forms of mothering in no
way implies a lack of significance. The rights and interests of these social mothers are
already recognized in law, albeit inadequately, whereas the simultaneous or prioritized rights
of more than one biological mother is an open question. The theory of genetic essentialism,

[Vol. 12:1



2003] Genes, Parents, and ARTs 45

few decades, a woman who bore a child was always also the woman who
contributed half the genetic complement to that child. When an analysis of
parenthood occurred, the law named the male party as a parent by his
genetic contribution through his sperm, 132 and the female party was named
as a parent by her giving birth, which also happened to coincide with her
ovum creating the child. "Bearing a child" was synonymous with "being the
child's genetic mother."'133 New reproductive technologies have changed
this relationship. Now, it is possible for the biological female contribution
to procreation to be made by at least two women, one who contributes the
genetic material (the ovum or gamete donor) and one who gestates and
gives birth to the child.134 We have been forced to recognize that giving
birth is no longer the only way to be a mother or female biological parent.
With an understanding of the separation of the genetic and gestational
aspects of biological maternity, we can begin to analyze whether the genetic

which I challenge, would devalue these social mothers if it were applied in their custody
disputes over infants, just as it devalues non-genetic, gestating mothers.

A misunderstood or misapplied biological essentialism, as opposed to genetic
essentialism, could also undermine social mothers. If properly understood, however, there
are significant analogies between biological essentialist and social mothering. Both
biological and social mothering are about dependencies and relationships. A biological
essentialism based on pregnancy, labor, and giving birth recognizes that women's biological
contributions to their fetuses/children are relational. Pregnancy is an active relationship
between a pregnant woman and her fetus, just as social mothering is an active relationship
between mother and child. Genetic contributions, on the other hand, are about DNA and
cells, at best about potential relationships, but not about active current relationships. Janice
G. Raymond, Women as Wombs: Reproductive Technologies and the Battle Over Women's
Freedom 36-39 (1993).

132 For the moment, this excludes the legal presumption that the husband of a

pregnant woman is the father. See, e.g., Michael H. v. Gerald D., 491 U.S. 110 (1989); In re
Raphael P., 118 Cal. Rptr. 2d 610 (Ct. App. 2002). See also a full discussion of this legal
presumption and its implications for legal parenthood in Janet L. Dolgin, Just a Gene:
Judicial Assumptions About Parenthood, 40 UCLA L. Rev. 637 (1993). But see Rafferty v.
Perkins, 757 So. 2d 992 (Miss. 2000) (Supreme Court of Mississippi rejected the
presumption that husband is father of child when faced with genetic evidence that another
man was the father); and Witso v. Overby, 609 N.W.2d 613 (Minn. Ct. App. 2000) ("A
positive genetic test thus creates a presumption of paternity that would, in this action,
compete with the presumption of paternity applicable to the mother's husband."). This is an
important adaptation in the law, but not relevant to this case or argument, so I am bracketing
it for now.

133 Johnson, 851 P.2d at 776.

134 There also may be a third woman included in the analysis of maternity-the

intending, social, or adoptive mother-who may or may not be a biological mother. As
technologies dip deeper into the well of interventions into human reproduction, we may be
adding more biological roles. One of the cloning techniques used involves taking an
enucleated cell from one person (who could be one of the biological mothers) and inserting
the genetic or DNA material from another person (biological mother or father) and then
having another woman gestate the embryo (another biological mother). This could result in
three biological mothers.



Columbia Journal of Gender and Law

component or the gestating and birth component of the female contribution
ought to be privileged in custody or visitation disputes.

Once maternity has been disassembled by ARTs, courts' unstated
assumptions about parenthood are exposed. The unstated assumption courts
use more and more frequently in disputes arising from ARTs is that genetics
is the core identity of the child, and therefore genetic contributors ought to
be seen as the legal parents.' 3 5 This argument, based in genetic essentialism,
is rooted in a male-biased perspective on reproduction. 36 Were a non-sex-
based or "neutral" perspective used, genetics alone, or even genetics and
intention at conception, would not be the defining element of legal
parenthood. Fairness requires that we remove this male-bias from courts'
analyses of parenthood in ART cases and apply a more equitable analysis
that respects the biological realities of reproduction for both sexes.
Principles of justice urge us to expose the male bias in the ways courts
subtly or overtly use genetics as the primary descriptor of parenthood13 7 and
especially motherhood.

In evaluating the contributions of males and females to
reproduction, we can measure many things: their intent to procreate, their
genetic contributions, other biological contributions (including bonding and
pre-birth nurturance), the relationship between parent and fetus/child, and
post-birth social nurturance. My argument in this essay is based solely on
prenatal biological contributions, since postnatal social and physical

135 1 see this trend in Soos v. Superior Court, 897 P.2d 1356 (Ariz. Ct. App. 1994);

Johnson, 851 P.2d 776; Culliton v. Beth Israel Deaconness Med. Ctr., 756 N.E.2d 1133
(Mass. 2001); In re Baby M, 537 A.2d 1227 (N.J. 1988); Belsito v. Clark, 644 N.E.2d 760
(Ohio Ct. App. 1994); In re O.G.M., 988 S.W.2d 473 (Tex. Ct. App. 1999); and Perry-
Rogers despite the courts' rhetoric in each of these cases that decisions were based on
intentions. In all of those cases, the court found the genetic contributors to be the parents, in
some cases even when the intentions at the time of conception were arguably different. But
see In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Ct. App. 1998); Doe v. Doe, 710 A.2d
1297 (Conn. 1998); R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998).

136 Barbara Katz Rothman, Daddy Plants A Seed: Personhood Under Patriarchy, 47
Hastings L.J. 1241 (1996). Janice Raymond calls this "ejaculatory fatherhood." Women as
Wombs, supra note 131, at Ch. 2.

137 In contrast to my argument that the law is moving toward relying more on

genetics to define parenthood, Janet Dolgin powerfully argues that in law, women have been
denominated mothers based on their biological connections to a child, but men have needed
more than biology, or their genetic connection, to be entitled to paternity. Dolgin, supra note
132. She argues that courts favor men who have formed a familial relationship with the
child's mother when determining paternal rights, rather than looking solely to their genetic
connection to the child. This seems borne out in recent paternity cases, where conduct and
relationships trumped the need for genetic testing as the indicia of paternity: San Francisco
Dept. of Human Servs. v. Raphael P. III (In re Raphael P.), 118 Cal. Rptr. 2d 610 (Ct. App.
2002); People ex. rel. J.A.U. v. R.L.C., 47 P.3d 327 (Colo. 2002); Kim C. v. Glenn W., 744
N.Y.S.2d 777 (App. Div. 2002). But see Walter v. Gunter, 788 A.2d 609 (Md. 2002), where
putative father's child support obligation was vacated after genetic testing excluded him as
the father.

[Vol. 12:1



2003] Genes, Parents, and ARTs 47

contributions-except for lactation (for which bottle-feeding can be
substituted)--can be equally contributed by males or females."' With
regard to "intent to procreate," men and women are also in parity; they can
each intend to reproduce and each can intend to become the parents who
will rear the children. Applying an intent standard for determining
parenthood is free of sex-bias, 139 because men and women have equal
opportunities to intend to be parents. 40 But men and women are not
equivalent in their prenatal biological contributions to the birth of a child.
The only biological way that men contribute to reproduction is through the
genetic contribution of their gametes.' 4' Men contribute half the genetic
material that defines the child's DNA. Women have two biological ways to
contribute to reproduction-the genetic contribution of their gametes and
the biological connections of gestation and birth that form a direct
relationship with the fetus/child. If we privilege genetics over gestation, we

138 Linda Lacey objects to a focus on biological motherhood as too dismissive of

the needs and interests of infertile women for whom any biological motherhood is not an
option or for whom only genetic motherhood is an option. Linda J. Lacey, "0 Wind, Remind
Him That I Have No Child": Infertility and Feminist Jurisprudence, 5 Mich. J. Gender & L.
163 (1998). If I could play out her arguments with those I make in this essay, I believe her
claim would be that my "biological essentialist" argument is as flawed as a "genetic
essentialist" argument, for it devalues and ignores infertile women's interests and needs in
"having children." Accord Barbara J. Berg, Listening to the Voices of the Infertile, in
Reproduction, Ethics & the Law 80 (J. Callahan ed., 1995). Lacey does recognize, however,
that incorporating the infertile woman's perspective into the analysis still does not answer
the question of who should have custody when there are disputes. ("I do not contend that
adding the infertile woman's voice to the dialogue will provide easier answers to complex
problems." Lacey, supra note 14, at 195.).

139 Several courts have used an "intent" standard to determine parentage in

disputed gestational mother custody cases. Johnson, 851 P.2d 776; Buzzanca v. Buzzanca
77 Cal. Rptr. 2d 280 (Ct. App. 1998); McDonald v. McDonald, 608 N.Y.S.2d 477 (App.
Div. 1994).

140 In cases such as the dispute between the Fasanos and Rogerses, an "intent"

standard does not advance the analysis, since both parties equally intended to create a child
through IVF and embryo transfer. Because of the intent standard's inadequacy in a context
where embryos are stolen, misappropriated, or switched, I would urge us to reject an intent
standard, unless it is based solely on intent to create a child. Courts have used the intent
standard to analyze questions about intent to rear the child. See, e.g., Johnson, 851 P.2d 776
and McDonald, 608 N.Y.S.2d 477. To me, this misapplication of an intent standard
transforms a reproductive and family-based inquiry into a contract-based inquiry, reflective
of market values more than familial/relational values. For a valuable discussion of market-
based versus family-values-based versus genetics-based analyses regarding new reproductive
technologies, see Janet L. Dolgin, Choice, Tradition, and the New Genetics: The
Fragmentation of the Ideology of Family, 32 Conn. L. Rev. 523 (2000).

14' Barbara Katz Rothman, Recreating Motherhood: Ideology and Technology in a

Patriarchal Society (1989); Janice Raymond, Women as Wombs, supra note 131.



Columbia Journal of Gender and Law

privilege the only thing men can do as the measure of parenthood; we use
contribution of gametes as the only definition of legal parenthood.1 42

Women, like men, contribute half the genetic materials that define
the child's DNA, but women also contribute the physical, biological
environment and nutrients that enable the combined male and female
gametes to grow to become a baby. The latter biological role has no male
equivalent. Pregnancy/gestation is biological and relational; the crux of the
biology is the relationship between pregnant woman and child in utero. In
an analysis that prioritizes genetics as the definition of legal parenthood,
those biological functions that women additionally do during reproduction,
i.e., gestating, going through labor, and giving birth to a child, become of
lesser importance, or even no importance, in defining legal parenthood. 43 A
genetics-based analysis violates principles of sex equality because it counts
all the things that men do in procreation, but does not count all the things
that women do in procreation. To value those aspects of procreative
contribution which track the sum total of what men do, but ignore or
devalue those aspects of procreative contribution that only women do,
unjustly discriminates against women. Therefore, measuring legal
parenthood first and foremost by what men biologically contribute unfairly
favors men by encoding their experiences of procreation as the dominant
measure of parenthood.' 44 Both genetics-based and biological-contribution-

142 Ruth Halperin-Kaddari, Redefining Parenthood, 29 Cal. W. Int'l L.J. 313

(1999) ("Conventional dichotomy of genetic versus social construction of parenthood is
more reflective of the male experience of parenthood than the female experience." Id. at 325-
26.). Professor Halperin-Kaddari argues that Israeli law makes genetics the ultimate force
and has unintended patriarchal consequences.

143 In Johnson, 851 P.2d 776, the California Supreme Court named genetic donors
as the parents, completely overriding any legal parental claims by the gestational surrogate
mother. The court argued that it was persuaded by "intent," not genetics, but the genetic
essentialism of the opinion was clear.

144 The court in Soos v. Superior Court, 897 P.2d 1356 (Ariz. Ct. App. 1994)

decided the equality issue completely differently. Finding the state's surrogate statute
violative of equal protection when it declares the surrogate the legal mother of the child born
as a result of a surrogate parentage contract, A.R.S. § 25-218(B), the court reasoned that,
since Arizona law allows a man to rebut the presumption of legal paternity in another by
proving genetic fatherhood, it should afford a woman the same right. Although the woman
giving birth (the gestational mother) is presumptively the mother, the law must afford the
female genetic progenitor an opportunity to rebut that presumption of maternity with
evidence of the genetic tie. "A woman who may be genetically related to a child has no
opportunity to prove her maternity and is thereby denied the opportunity to develop the
parent-child relationship.... The Mother has parental interests not less deserving of
protection than those of the Father." Id. at 1360. The court errs in its analysis because it
equates a legal presumption based on social concerns (paternity in the husband of the
mother) with a legal presumption based on biological facts (maternity in the woman who
gestates and gives birth to the child). Men and women are not in the same situation with
regard to reproduction because of critical biological differences. This fundamental biological
difference shows that Arizona is not treating similarly situated persons differently in

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2003] Genes, Parents, and ARTs 49

based analyses of parenthood may be criticized for their "biological
essentialism" if that were the only consideration that courts assessed in
determining parenthood.

Feminist legal scholars, feminist social scientists, and feminist
political theorists have carefully illustrated the dominant historical tendency
of law and society to privilege males over females through the conscious,
subconscious, or unconscious use of unstated assumptions and male-biased
perspectives. I am arguing that the newly developing genetics-based
analysis of motherhood (and parenthood generally) continues in that
discredited tradition, and therefore must be abandoned.

An impartial, yet more inclusive, approach would value all the
contributions to reproduction made by both sexes and determine
presumptive custody by evaluating which potential legal parent made the
most significant contribution (biologically, relationally, and
psychologically) to the child's life and well-being. This kind of analysis
sounds strikingly similar to the "primary caretaker" analysis in family
law145 or even the "best interests of the child" analysis. 146 That gestating
birth mothers would presumptively prevail in these contests is not a
function of the inequitable application of a biased norm, as in a genetics-
based analysis, but a reasoned measure of the biological and relational facts
of child in utero's life. 47 Gestation, labor, and delivery are the sine qua non

violation of equal protection when it creates an irrebuttable presumption of maternity in the
gestating woman.

145 See, e.g., Garska v. McCoy, 278 S.E.2d 357, 360-61 (W. Va. 1981) (applying
primary caretaker presumption to establish custody for young child). Accord, Mary Ann
Mason, Custody Wars: Why Children Are Losing the Legal Battle and What We Can Do
About It (2000) (proposing a primary parent preference). Something more akin to the
primary caretaker role has also been incorporated into the American Law Institute's
Principles of Family Dissolution, Section 2.09, which allocates responsibility and time with
the child post-dissolution to the parents in proportion to the time they spent relating to and
nurturing the child prior to the dispute. Principles of the Law of Family Dissolution:
Analysis and Recommendations § 2.09 (Tentative Draft No. 3, Part I, Mar. 20, 1998). By
recognizing the value of the relational, nurturing role to the well-being of the child, the ALl
principles replicate the kind of analysis proposed here. The nine months of prebirth
nurturance in utero would be valued in the same way that the pre-dissolution nurturance is
valued by the ALl Principles.

146 After this article was drafted, but before it was published, Ilana Hurwitz

published her thoughtful article in Collaborative Reproduction: Finding the Child in the
Maze of Legal Motherhood, 33 Conn. L. Rev. 127 (2000), reaching a very similar
conclusion.

147 See, e.g., Marie Ashe, Law-Language of Maternity: Discourse Holding Nature

in Contempt, 22 New Eng. L. Rev. 521 (1988). Janet Dolgin instructs us that Justice Stewart
recognized the relational bond between the gestating mother and child in his dissent in
Caban v. Mohammad, 441 U.S. 380, 397 (1979) ("Parental rights do not spring full-blown
from the biological connection between parent and child. They require relationships more
enduring. The mother carries and bears the child, and in this sense, her parental relationship
is clear."), as did Justice Stevens in his dissent. Id. at 405 (discussing a "symbiotic
relationship between mother and child" creating a "physical and psychological bond"). Janet



Columbia Journal of Gender and Law

of bringing children into the world. Perhaps some day children will be
"grown" entirely in vitro, ex utero, through ectogenesis. 48 However, we are
not there yet and will not be for quite some time. 149 Couples who use in
vitro fertilization to create embryos still need a woman to gestate the child
or their embryos die or remain frozen in liquid nitrogen. Though both men
and women equally contribute gametes and DNA to a child,'50 a woman's
many months of gestation, labor, and delivery necessarily constitute a more
significant biological and relational contribution to the child's existence
than genetics.

The most troubling problem with a genetic essentialist approach is
that it ignores this post-conception, prenatal biological, relational, and
psychological connection between mother and child. Biologically, the
placenta-an organ that is genetically part of the fetus, but also responsible
for maternal metabolic changes during pregnancy-physically connects the
mother and fetus.' 5 ' Maternal hormones, such as adrenaline, produced in
response to emotions such as anger, anxiety, and fear have been shown to
prompt kicking by the fetus, behaviorally linking mother and fetus.15 2

Psychological analyses of. women's experiences during pregnancy
demonstrate a positive attachment to the fetus that develops during the first

L. Dolgin, Just a Gene: Judicial Assumptions About Parenthood, 40 UCLA L. Rev. 637,
659-660 (1993). My argument emphasizes that, unlike the language used by these two
Justices, the bond between gestating mother and child is a biological bond, i.e., not solely
psychological, and that the biology of pregnancy is a biology about the relationship between
mother and child. The point of quoting the Caban majority and dissent is to illustrate that the
Supreme Court is very capable of recognizing the powerful connection between gestating
mother and child as a component of parenthood.

148 Julien S. Murphy, Is Pregnancy Necessary? Feminist Concerns about

Ectogenesis, in Healing Technology: Feminist Perspectives in Medical Ethics (Kathryn
Strother Ratcliff ed., 1989). That day may be sooner than we think. See Robin McKie, Men
Redundant? Now We Don't Need Women Either Scientists have developed an artificial
womb that allows embryos to grow outside the body The Observer, Feb. 10, 2002, at 7.

149 Some early feminist theorists yearned for the day when children could be
gestated ex utero, thinking that technology would liberate women. See, e.g., Shulamith
Firestone, The Dialectic of Sex: The Case for Feminist Revolution (1970). I am not so
optimistic.

150 Though gametes are equally contributed by men and women, the process by
which women contribute gametes to in vitro fertilization is significantly riskier and more
intrusive than the process by which men contribute gametes. This physical fact may militate
in favor of female gamete providers in disputes with male gamete providers over embryos or
children. See, in part, argument for Sue Davis in Davis v. Davis, 842 S.W.2d 588 (Tenn.
1992), cert. denied, 507 U.S. 911 (1993).

11 Pedro Rosso, Nutrition and Metabolism in Pregnancy, Mother and Fetus 133
(1990).

152 Thomas Veiny & John Kelly, The Secret Life of the Unborn Child 76, 85
(1981).

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2003] Genes, Parents, and ARTs 51

trimester of pregnancy and increases throughout the gestation period.1 53

Specifically, attachment has been shown to dramatically increase after the
fetus shows "clear signs of life" such as movements and quickening. 5 4

Behavioral studies of expectant mothers have reported that women engage
in attachment behaviors, such as talking to the fetus, calling it by a pet
name, reprimanding it for moving too often, and offering it food when they
are eating, and adopt psychological mindsets in preparation for birth.151

A genetic essentialist analysis constructs the gestating mother as a
mechanical incubator rather than as a being interacting with the fetus. As
Justice Kennard of the California Supreme Court writes in her dissent in
Johnson v. Calvert:

A pregnant woman intending to bring a child into the world is
more than a mere container or breeding animal; she is a conscious
agent of creation no less than the genetic mother, and her
humanity is implicated on a deep level. 156

Even if the male bias of a genetics-based analysis of parenthood were too
subtle to see in its other formulations, the dehumanizing of the fundamental
female gestational contribution to reproduction by objectifying a pregnant
woman as a "womb to rent" or fetal container, confirms the hypothesis of
male-bias.

No part of what a male contributes to reproduction is devalued in a
genetics-based analysis; the largest part of what a female contributes to
reproduction is devalued and dehumanized in an analysis that relies on a
genetic definition of legal parenthood. In addition to the differential
qualitative contributions of men and women to reproduction, the risks of the

153 Mecca S. Cranley, the developer of the first measurement scale of maternal-
fetal attachment, defined prenatal "attachment" as "the extent to which women engage in
behaviors that represent an affiliation and interaction with their unborn child". Mecca A.
Cranley, supra note 80, at 281 (1981). See also Jeanne T. Grace, Development of Maternal-
Fetal Attachment During Pregnancy, 38 Nursing Research 4,228-32 (1989).

154 Mario Mikulincer & Victor Florian, Maternal-Fetal Bonding, Coping
Strategies, and Mental Health During Pregnancy - the Contribution of Attachment Style, 18
J. of Soc. & Clinical Psychol. 3, 256-57 (1999).

155 Cranley's maternal-fetal attachment scale identified and measured six subscales
of maternal behavioral-psychology. These included: 1) differentiation of self from fetus; 2)
interaction with fetus; 3) attributing characteristics and intentions to the fetus; 4) giving of
self; 5) role-taking; and 6) nesting. Cranley, supra note 80, at 282. A subsequent study by
Grace determined that behaviors associated with role-taking and giving of one's self were
most positively correlated with increased gestation. Grace, supra note 153.

156 851 P.2d. 776, 797-98 (Cal. 1993). See also Julien Murphy, Should Pregnancies

Be Sustained in Brain-Dead Women?: A Philosophical Discussion of Postmortem
Prenancy, in Healing Technology: Feminist Perspectives 135-59 supra note 148
(emphasizing the need to respect a woman's autonomy through recognizing consciousness
and choice as critical elements of pregnancy and reproduction).



Columbia Journal of Gender and Law

process of reproduction for men and women differ significantly, as do the
risks for gestating women over gamete-donating women. 15

The birth [gestating] mother risks sickness and inconvenience
during pregnancy. She faces the certain prospect of painful labor.
She even risks the small but qualitatively infinite possibility of
death. Throughout all of this discomfort and uncertainty, it is her
body, which remains the cradle for the growing fetus. By
comparison, the physical involvement of the sperm donor is de
minimis. While the egg donor physically risks more than the
sperm donor, her level of physical involvement pales in
comparison with the gestational host.158

An extensive feminist bioethics body of literature addresses these
significant sex-based differences, their implications, and how we ought to
analyze ARTs for men and women in all of their roles.' 59 Whether as a
matter of natural reproduction or assisted reproduction, equality requires
that gestation be fully valued for the extraordinary female contribution
(biological and relational) to reproduction that it is. A genetics-based
analysis of parenthood fails to meet that test because of its sex bias. When
contributions of genetic materials and contributions of gestation, labor, and
birth are treated without bias and fairly compared, it becomes clear that a

157 The egg donation/retrieval process for gamete donors is no simple matter.
Women must take regular hormone injections to properly time their cycles, plus other drugs
to create controlled ovarian hyperstimulation (to ripen and produce more eggs); must be
monitored at clinics; must communicate with the clinical team; and then must undergo
intrusive surgery (laparoscopy) or transvaginal manipulation with ultrasound guidance to
retrieve the eggs. See, e.g., Nancy Klein, Gretchen Sewall & Michael Soules, Donor Oocyte
Program at University of Washington Medical Center, in New Ways of Making Babies 3, 10
(Cynthia Cohen ed., 1996). In a parallel analysis to that of genetic versus gestational
contributions, a weighing of the biological contributions between female and male gamete
donors reveals that female gamete donors make a significantly greater biological
contribution by undergoing a more difficult and time-consuming process in order to donate.

158 John Lawrence Hill, What Does It Mean to be a "Parent"?: The Claims of

Biology as the Basis for Parental Rights, 66 N.Y.U. L. Rev. 353, 408 (1991).

'59 The list of articles would be too long. Even a partial list of books is extensive:
see, e.g., Cvborg Babies: From Techno-Sex to Techno-Tots, Part 3 (Robbie Davis-Floyd &
Joseph Dumit eds., 1998); Embodying Bioethics: Recent Feminist Advances, Part II (Anne
Donchin & Laura M. Purdy eds., 1999); Feminist Perspectives in Medical Ethics 169-300
(Helen Bequaert Holmes & Laura M. Purdy eds., 1992); Valerie Hartouni, Cultural
Conceptions: On Reproductive Technologies + the Remaking of Life (1997); Christine
Overall, Ethics and Human Reproduction (1987); Janice G. Raymond, Women as Wombs:
Reproductive Technologies and the Battle Over Women's Freedom (1993); Reproduction,
Ethics, and the Law: Feminist Perspectives (Joan C. Callahan ed., 1995); Barbara Katz
Rothman, Recreating Motherhood: Ideology and Technology in a Patriarchal Society (1989);
Susan Sherwin, No Longer Patient: Feminist Ethics & Health Care (1992); Patricia
Spallone, Beyond Conception: The New Politics of Reproduction (1989); RoseMarie Tong,
Feminist Approaches to Bioethics (1997).

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Genes, Parents, and ARTs

gestating mother is entitled to presumptive primary legal parenthood, with
its concomitant rights to custody and visitation.

To reach the conclusion that women's biological contributions of
gestation, labor, and birth ought to be included in an analysis of biological
parenthood does not mean that a man's or woman's genetic contribution to
a child ought to be ignored and devalued instead. Nor does it imply that the
intentions and desires of infertile couples who cannot contribute genetically
or biologically are to be ignored. My sole argument here is that biological
contribution is one important aspect of legal understandings of parenthood,
and in any analysis where weight is given to biological contributions, a
primarily genetics-based definition of biological contribution is sex biased
and must be abandoned.

The court in Perry-Rogers v. Fasano denies that it is applying
"solely" a genetics-based analysis of parenthood, yet it reaches a conclusion
that effectuates that end. But for genetics, and in the absence of legal
adoption, no other reason exists to give any legal rights, especially
exclusive legal rights with regard to Joseph/Akeil to the Rogerses.160 While
he was nurtured in utero, born, and cared for at the beginning of his life, the
Rogerses did not even know of his existence. For the almost eight
additional months of pregnancy after the clinic notified them of the mistake
and during the time after Joseph/Akeil's birth before their genetic
parenthood was confirmed, the Rogerses were unaware of his existence.
During that same time period, Donna Fasano developed a relationship with
the child and nurtured him daily in her body and through her being. The
Rogerses' claim to him, when they discovered the fact of his birth, was
genetic, not relational. The Rogerses were terribly wronged by the
negligence of the 1VF clinic, but the clinic's mistake with respect to the
misappropriation of their embryo does not seamlessly translate into parental
rights in the child, as the court makes it appear. They have been harmed,
and harmed by reproductive technologies, but being harmed does not make
one a legal parent.

If the court had not found genetics to be the basis for legal
parenthood, the court could have found that the Rogerses had no standing to
claim exclusive legal parenthood, despite their potentially valid claim
against the IVF clinic. Instead, the court found that the Fasanos had no
standing to bring a claim for visitation. Therefore, the facts of this case and
the resolution reached contradict the court's insistence that genetics is not
the only basis for parenthood. Somehow a male-biased genetic essentialism
crept in as the court's unstated assumption. The ensuing gender bias
undermines the possibilities of achieving a just result.

160 In this case there is the signed agreement between the parties, but since the
court disregards that agreement when it comes to visitation, it would be odd to conclude that
it was enforcing other aspects of that agreement.

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Columbia Journal of Gender and Law

D. Race Issues and Assisted Reproductive Technological Mistakes

The Perry-Rogers v. Fasano opinion does not acknowledge the
racial issues raised by this case,' 6 ' and yet the court seems to have used an
unconscious or unspoken ideology about race to reach its conclusion that
Donna Fasano was wrong when bonding with Joseph/Akeil. Racial
difference is the elephant in the living room that we are not supposed to
mention. Practically every newspaper account of this extraordinary situation
mentions the racial differences between the couples and between the
twins.162 This subsection explores the role of racial differences in Prry-
Rogers v. Fasano and illustrates how race influenced the way the court
resolved the dispute about parenthood claims. The court presents its
decision as if it were "colorblind," yet proceeds to use race-based
assumptions to reach its conclusion. This creates a damaging race-bias that
results in a new kind of biological racism.

Biological racism maintains that racial groups are physically
distinct species, with specific characteristics or capabilities attributable to
group members' similar genes and biology. The racism part of biological
racism separates or divides human beings into hierarchically ranked groups
with more or less power and privileges; the biological part of biological
racism makes those divisions seem scientifically supportable and natural, as
if they were based on true physical distinctions between races. One's
physiognomy becomes the signifier of racial group membership. But
biological racism does more harm than simply signifying membership; it
divides people into groups in ways that do not necessarily reflect their
agency, experiences, understandings, or even their relationships. One of the
residual effects of an assumption about "race as biology" (or "race as
physiognomy") is that it carries with it social or cultural norms and
expectations. Those expectations, including conceptions of the
appropriateness of interracial intimacy, 163 endure in our social and cultural
conduct and are incorporated into legal decision-making, even if they are no
longer openly sanctioned by law, as happened in Pen-y-Rogers v. Fasano.

16 1 Race is only mentioned in one paragraph in the facts. Perry-Rogers v. Fasano,

715 N.Y.S.2d 19, 22 (App. Div. 2000).
162 See, e.g, Cerisse Anderson, Couple's Visitation Rights are Reiected in Case of

Mixed-up In Vitro Births, N.Y. L.J., Oct. 27, 2000, at 1; Bob Groves, Lawyers Argue over
Visitation in Case of Misplaced Embryo, Rec. N.N.J., June 10, 2000, at A03; Michael
Grunwald, In Vitro, in Error, and Now in Court; White Mother Given Black Couple's
Embryos Will Give One 'Twin' Back, Wash. Post, Mar. 31, 1999, at A01; Jim McClean,
Couples war over implant mix-up baby: White parents of black child accused of trying to
exploit fertility treatment fracas, Herald (Glasgow, Scotland), Oct. 20, 2000, at 11; Samuel
Maull, Teaneck Parent Opposing 'Twin' Visits, Rec. N.N.J., Feb. 4, 2000, at A06; Kathleen
Parker, Baby Case Ends with Multiracial Scrambled Eggs, Chi. Trib., June 21, 2000, at 17.

163 Rachel F. Moran, Interracial Intimacy: The Regulation of Race and Romance

(2001).

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Genes, Parents, and ARTs

An assumption about race as a biological, genetic fact, combined
with cultural norms that still discourage interracial intimacies, including
interracial parenthood, limits Joseph/Akeil's options to have a familial
relationship with his birth mother (that is, to be with his white mother in
addition to his African-American mother). I contend that the court's
decision punishes Joseph/Akeil for being racially different from his birth
family, i.e., for being dark-skinned and appearing to be African-American. I
do not want to be understood to be saying that Joseph's placement with his
genetic parents, the Rogerses, is punishment. Nonetheless, it clearly is
punishment to completely sever a child's connection with his birth mother
and brother, despite their strong desires to stay attached and continue the
relationship.

My argument is that the Perry-Rogers court defaulted to a simplistic
race-matching approach to parenthood, determined by genetics and
physiognomy. While part of that decision is the result of the genetic
essentialism discussed in an earlier section of this essay, the other part is
attributable to an ideology of biological racism. In either case, whether due
to genetics alone (genetic essentialism) or race and genetics (biological
racism), Joseph/Akeil is forced to suffer the loss of his gestational mother
and brother. The consequences for Joseph/Akeil of the court's biologically
race-based assumptions are as painful and real as if they were carved into
his body by the execution apparatus/machine from Kafka's The Penal
Colony.' 6 4

To illustrate the role that race played in the court's decision-
making, I provide a rough overview of the multiple steps that establish the
race-bias of the court's reasoning, and I then develop some of its subparts
more fully. First, if the court is not relying solely on genetics as the
descriptor of legal parenthood, as it states, then we must examine why the
court reached the decision it did. That is the purpose of this subsection.
Second, the court explains that Donna Fasano was denied standing to make
a claim to maintain a relationship with her infant on the grounds that she
was wrongful in bonding with the infant. Third, since Fasano was made
aware of the clinic's error early in her pregnancy, she should have known
that both, one, or neither of her twins might be the genetic child of another
couple. Fourth, despite the general uncertainty about both children's genetic
parentage during the pregnancy, the court never requires Fasano or any
mother made aware of an ART clinic mistake to genetically test at their
birth all of her infants born from that pregnancy. Fifth, the court does not
say that in the absence of genetic testing, parents utilizing ARTs are wrong
in bonding with any of their children. Sixth, the court never faults Donna
Fasano for bonding with Vincent, the other twin. Seventh, the only possible
way Fasano could have known she was not to bond with Joseph/Akeil was

164 Franz Kafka, In the Penal Colony, in Law in Literature: Legal Themes in Short
Stories 217 (Elizabeth V. Gemmette ed., 1995).

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Columbia Journal of Gender and Law

his different racial physiognomy from hers and her husband's. Finally, the
court uses physical features correlated with racial groups to delimit the
range of legally appropriate relationships for Joseph/Akeil and the Fasanos.
These race-based assumptions and, consequently, relational limitations are
throwbacks to a flawed biological racism theory that has been roundly
rejected by scientists and scholars alike.

My biological racism critique of Perry-Rogers identifies two
important unstated assumptions. One, race is reducible to a visually
detectable set of characteristics, which are genetically transmitted. Two,
interracial familial relations are unseemly and should be avoided. Despite
powerful articulations by courts, scientists, and scholars denouncing
biological racism 65 and race-based prohibitions on family relations,1 66 these
concepts subtly appear in the Perry-Rogers decision.

The notion that race is a biological category fueled much racist
thinking in the past. However, this basic premise of biological racism is no
longer generally accepted as a viable theory by law and society. 67 In 1987,
the United States Supreme Court in St. Francis College v. Al-Khazraii,
stated

There is a common popular understanding that there are three
major human races-Caucasoid, Mongoloid, and Negroid. Many
modem biologists and anthropologists, however, criticize racial
classifications as arbitrary and of little use in understanding the
variability of human beings. It is said that genetically
homogeneous populations do not exist and traits are not
discontinuous between populations; therefore, a population can
only be described in terms of relative frequencies of various
traits. Clear-cut categories do not exist. The particular traits
which have generally been chosen to characterize races have been
criticized as having little biological significance. It has been
found that differences between individuals of the same race are
often greater than the differences between the "average"

165 See infra text accompanying note 168.

166 Loving v. Virginia, 388 U.S. 1 (1967); Palmore v. Sidoti, 466 U.S. 429 (1984).
167 See, e.g., Ian F. Haney Lopez, White By Law: The Legal Construction of Race

(1996); Donald Braman, Of Race and Immutability, 46 UCLA L. Rev. 1375 (1999) ("The
Court has not held-indeed, could not have held-racial status to be biological, but it has
instead treated that status as the product of institutions that were necessarily social and
political."); Richard Ford, Race As Culture? Why Not?, 47 UCLA L. Rev. 1803, 1806
(2000) ("It is now almost common knowledge that the idea of race-as-biological-difference
has been discredited as a matter of science" Id. at 1806.); Barbara K. Kopytoff & A. Leon
Higginbotham, Racial Purity and Interracial Sex in the Law of Colonial Antebellum
Virginia 77 Geo. L.J. 1967, 1981 (1968); Ian F. Haney Lopez, The Social Construction of
Race: Some Observations on Illusion, Fabrication and Choice, 29 Harv. C.R.-C.L. L. Rev. 1,
6 (1994); Keith E. Sealing, Blood Will Tell: Scientific Racism and the Legal Prohibitions
Against Miscegenation, 5 Mich. J. Race & L. 559 (2000).

[Vol. 12:1



2003] Genes, Parents, and ARTs 57

individuals of different races. These observations and others have
led some, but not all, scientists to conclude that racial
classifications are for the most part sociopolitical, rather than
biological, in nature. 68

That racial groupings are often correlated with certain physical features
does not make race a legitimate biological classification. 69  Racial
classifications may be associated with genetically transmitted physical
characteristics like skin color, hair color and texture, eye color and shape,
nose size and shape, facial bone structure, and body size and shape, but
those associations cannot be scientifically translated into a biological
definition of race and certainly should not be considered an analog of legal
parenthood. The variations of characteristics within a designated "race" are
as broad as the variations between delimited "races.' ' 70

168 481 U.S. 604, 610 n.4 (1987).

169 See, e.g., Sandra Soo-Jin Lee, Joanna Mountain & Barbara Koenig, The

Meanings of "Race" in the New Genomics: Implications for Health Disparities Research, 1
Yale J. Health Pol'y L. & Ethics 33, 37-40 (2001); lan Haney Lopez, Race, Ethnicity,
Erasure: The Salience of Race to LatCrit Theory 85 Cal. L. Rev. 1143, 1152 (1997). Reva
Siegel states that:

Current scientific and social-scientific accounts of race do not treat race
as a group-categorical distinction but instead conceptualize race in terms
of group-salience - as arising out of the uneven incidence of genetic or
phenotypic or social traits in a population; this is the approach to race
reflected in historical-race and culture-race discourses. Further,
historical-race and culture-race discourses understand race as
aggregations of socially relevant traits - that is, they conceptualize race
as made of norms, understandings, cognitive and practical skills,
material resources, life experiences, practices, activities, memories,
concerns, commitments, fears, interests, desires, and identifications that
are distributed in a society in group-salient patterns that persist with
variable intensity over time. Some version of this approach to
conceptualizing race as a social formation seems inevitable in debates
over the justice of our distributive practices, however complexly we
model the problem in institutional, dynamic, economic, or other terms.
For if we want to identify particular social practices that are
distributively just with respect to race, it would indeed seem that,
whatever our view of distributive fairness, we would have to reason
about race as it is socially instantiated, whether in historical or cultural
terms.

Reva B. Siegel, Discrimination in the Eyes of the Law: How "Color Blindness" Discourse
Disrupts and Rationalizes Social Stratification 88 Cal. L. Rev. 77, 99-100 (2000).

170 Anthony Appiah, The Uncompleted Argument: Du Bois and the Illusion of

Race, in "Race," Writing, and Difference 21, 30-32 (Henry Louis Gates, Jr. ed., 1985);
Richard C. Lewontin et al., Not in Our Genes: Biology, Ideology, and Human Nature (1984);
Renee Bowser, Racial Bias in Medical Treatment, 105 Dick. L. Rev. 365, 373-375 (2001);
Soo-Jin Lee et al., supra note 169, at 39. Scientists working on the human genome project
continue to discover that there are no genetic ways to differ between races. Natalie Angier,



Columbia Journal of Gender and Law [Vol. 12:1

How we treat people as members of racial groups based on these
physical features and perceived differences is not about biology at all.
Perceptions of which physical differences signify inclusion or exclusion in
certain racial groups (and even what constitutes a racial group) 17 ' have
changed over time and place and are politically and socially malleable. Ian
Haney Lopez notes, "Race, until recently, has been widely understood as
something rooted in the biology of human differentiation.... [However] all
racial identities ... are intelligible only as social constructions. Race is best
understood as a process of social differentiation rooted in culturally
contingent beliefs in the biological division of humans.' ' 172 john powell
describes race as "experiential," as a verb, as in "being raced," rather than

173
as a noun.

Socially and culturally constructed ideas about race vary in
particular historical moments and locations. 74 While there are a few
scientists today arguing for the persistence of racial categories, mostly for
purposes of public health benefits, most scientists and academic scholars
refute the concept of biological race. 175 But, as Haney Lopez instructs

Though a social construction, race is real. Its reality lies in social
practices, including beliefs in natural group divisions and their
significance, not in the abstract "truth" of such beliefs.
Recognizing the falsehood of physical conceptions of race cannot

Do Races Differ? Not Really. Genes Show, N.Y. Times, Aug. 22, 2000, at Fl. Findings from
the HGP indicate that 99.9% of the genome is the same across races and ethnicities, and it is
the remaining 0.1% that accounts for all genetic diversity between individuals. Nature
Genome Gateway, at http://www.nature.comlgenomics/human/slide-show/9.html (last
visited Oct. 29, 2002).

17 1 As Martha Mahoney explains, "Race derives much of its power from seeming

to be a natural or biological phenomenon, or at the very least, a coherent social category."
Martha R. Mahoney, Segzregation, Whiteness, and Transformation, 143 U. Pa. L. Rev. 1659,
1661 (1995).

172 Haney Lopez, supra note 169, at 1152.

173 john a. powell, The "Racing" of American Society: Race Functioning as a Verb
Before Signifying as a Noun, 15 Law & Ineq. 99 (1997). Accord, Kendall Thomas, The
Eclipse of Reason: A Rhetorical Reading of Bowers v. Hardwick, 79 Va. L. Rev. 1805,
1806-07 (1993).

174 See, e.g., powell, supra note 173 (describing different ways in which race has

been understood in American history and culture).

171 See id. at n. 160. Some population geneticists have taken issue recently with this
position. For example, Neil Risch, of Stanford University, argues that the correlation
between race/ethnicity and disease is identifiable through genetics and must be taken into
account by biomedical researchers. Nicholas Wade, Race Seen As Crucial To Medical
Research, Toronto Star, Aug. 2, 2002, at F05 (referring to Risch's article in the online
journal Genome Biology). Risch identifies five racial categories through genetic markers,
classifiable based on historically isolated geographic origins that have traditionally been
denominated as races.



Genes, Parents, and ARTs

serve in and of itself to establish that race is unreal. Nor can it
support without more the conclusion that racial rhetoric is
inappropriate for discussing groups that have been racialized. The
"reality" encountered by such groups does not change in the least
with the recognition that race is not biologically real.1 76

My arguments are aligned with Haney Lopez's premises. The court is
wrong in both ways in which it engages with race-in using biological race-
based assumptions and in ignoring race's socio-political impacts when
making a decision in a case like this where racial difference is a critical
element.

A fair analysis of the custody (or visitation) dispute in Perry-Rogers
v. Fasano requires dealing openly with the issue of race, but with an
understanding of race as socio-economic, political, ideological, and cultural
practices, rather than as a biological fact.1 77 The court does the exact
opposite by not dealing with race openly, but instead applying an
assumption about race as a genetic, biological construct that requires race-
matching between parent and child. Genetic essentialism, applied in a race-
based culture, yields biological racism. Unlike sex, where biology
necessarily informs our understanding of reproduction and parenthood,
there is no relevant "biology of race" to inform our reasoning about
reproduction and parenthood.

As I mentioned earlier, the court claims that it is not looking at
genetics as the defining feature of parenthood. If we take the court at its
word, the only logical inference from the court's decision that the Fasanos
were blameworthy for forming a bond with their child is that the court was
acting on highly race-conscious assumptions about race and race-matching
between parents and children. In other words, the court either contradicts its
own assertions and uses a genetics-based approach as I argued in
subsections B and C above, or the court takes race into account sub silentio
by using an unexamined biological, race-based assumption about
parenthood. 78 Either approach is seriously flawed.

176 Haney Lopez, supra note 169, at 1186.

177 Michael Omi & Howard Winant, Racial Formation in the Untied States: From

the 1960s to the 1980s (1986). See generally Leslie Bender & Daan Braveman, Power
Privilege & Law: A Civil Rights Reader (1995).

178 Discussing other race-based assumptions that intersect with new reproductive

technologies, Lisa C. Ikemoto writes: "What may be most disturbing about this procreative
technology use is the imagined moment of a black woman giving birth to a white infant, or a
white woman giving birth to a black infant.... The level of unease generated by interracial
birth may also indicate that the notion of race that assumes biologically-inherent difference is
still deeply embedded in the more recent notion that racial difference is culturally
constructed." Lisa C. Ikemoto, The In/Fertile, the Too Fertile, and the Dysfertile, 47
Hastings L.J. 1007, 1017 (1996). Likewise, Patricia Williams assesses the role that race-
based assumptions would play if the baby in Baby M were black:

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One reason the court's approach in this case is so strange is that the
court never addresses the issue of the ever-present threat of ART mistakes
resulting in parent-child genetic mismatches and mix-ups. This case ought
to have been decided with attention to its important precedential value,
much like Davis v. Davis 179 was, as a case of first impression about a
custody battle over frozen embryos, or In re Baby M,180 a precedential
surrogate mother contract case. Such reasoning in this case could have
served as persuasive authority or guidance for courts across the nation.

On a broader level, we realize that without mandatory genetic
testing, parents using an ART process cannot know for certain that the
children they have borne are their genetic children. It is possible for
mistakes to happen in any IVF treatment procedure.1 81 The New York State
legislature has not responded to this problem. For that matter, no state
legislature has enacted a law requiring all parents to genetically test their

What would have happened, for example, if Mary Beth Whitehead had
turned out to have been the "passed" descendant of my "failed"
godmother Marjorie's mother? What if the child she bore had turned out
to be recessively and visibly black.... These questions turn, perhaps, on
not-so-subtle images of which mothers should be bearing which
children. Is there not something unseemly, in our society, about the
spectacle of a white woman mothering a black child? A white woman
giving totally to a black child; a black child totally and demandingly
dependent for everything, sustenance itself, from a white woman. The
image of a white woman suckling a black child; the image of a black
child sucking for its life from the bosom of a white woman.

Patricia Williams, The Alchemy of Race and Rights: Diary of a Law Professor 226 (1991).
April Cherry, in an important article, also examines the relationship between race,
mothering, and reproductive technologies, with specific attention to gestational surrogate
mothering, although her focus is more on the ways that black mothers of white children are
not appropriately acknowledged in law, rather than the reverse claim I am making in this
section that white mothers of black children are also discounted by courts. April Cherry,
Nurturing in the Service of White Culture: Racial Subordination, Gestational Surrogacy, and
the Ideology of Motherhood, 10 Tex. J. Women & L. 83, 89-93 (2001).

179 842 S.W.3d 588 (Tenn. 1992), cert. denied, 507 U.S. 911 (1993).

18o 537 A.2d 1227 (N.J. 1988).

181 Recently another IVF mistake where race was an issue occurred in Britain.
Sarah Lyall, Whites Have Black Twins in In-Vitro Mix-up N.Y. Times, July 9, 2002, at
A12. One wonders how often this occurs within a racial group rather than across races, and
therefore goes unnoticed or unreported. In Harnicher v. University of Utah Med. Ctr., 962
P.2d 67 (Utah 1988), as corrected, Mar. 19, 1999, a sperm mix-up was recognized because
the child had distinctly different physical features from the other children, but the difference
was not racial. There are several notorious sperm mix-up cases where the parents were white
and the children were of different races. See generally the discussion of the Skolnick and the
Higgins sperm mix-up debacles in Raizel Liebler, Are You My Parent? Are You My Child?
The Role of Genetics and Race in Defining Relationships After Reproductive Technological
Mistakes, 5 DePaul J. of Health Care L. 15 (2002).

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Genes, Parents, and ARTs

children at birth.1 2 Nor has any legislature enacted a law requiring the
special subset of parents, those parents whose children were conceived
through ARTs, to genetically test their children at their birth. Even absent
legislation to that effect, the court may have concluded that justice requires
that any parents participating in ARTs have their babies genetically tested at
their birth to determine their parenthood as a prerequisite to getting a legal
birth certificate and having legal custody.

Since the court never criticized the Fasanos for failing to have post-
birth DNA tests done on both their children immediately upon their birth,
then what about Joseph/Akeil, but not Vincent, would have indicated to the
Fasanos that he was not "their child" and that bonding with him was
wrongful? The court was unequivocal in its understanding that the Fasanos
acted wrongly in bonding with their child Joseph/Akeil after he was born (if
not even while he was in utero), but never indicated that they were
wrongful in bonding with Vincent as well:

[A]ny 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 a way
as to create a bond, and then rely upon it for their assertion of
rights to which they would not otherwise be entitled. 83

Joseph/Akeil's only characteristics that could have revealed to the Fasanos
that they were not entitled to treat him as their son were some of his
physical features, including skin color, that are correlated with race. 84 The
court implies that immediately upon Joseph/Akeil's birth, the Fasanos
should have recognized his "otherness" (racial difference) from them and
severed (or failed to establish) bonds with him. The reason the Fasanos
were wrong in their conduct, and therefore not entitled to standing as
parents in this visitation action, was that they failed "to take timely action."
They failed to reject their son for his racial otherness when he was born.
Lisa Ikemoto speaks about the way race-based assumptions play into these
technological mistakes and reveal a kind of biological racism:

[T]he historical rule of race is that any child born of a black
woman is also black. The use of transracial egg donation to
change the conclusion that blackness begets blackness challenges

182 Not that I would want such a law enacted.

183 Perrv-Rogers v. Fasano, 715 N.Y.S.2d 19, 26 (App. Div. 2000).

184 Had his eyes been blue instead of brown, would the court have reached the

same conclusion? Had he been long and thin in a family of short, stocky parents, would the
court have decided that they were wrongful to let bonding occur? What could it have been
but the signs of "racial otherness" or racial difference that motivated the court's conclusion?

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the assumption that black mothers create the traits deemed
inferior by white supremacy.

What may be most disturbing about this procreative
technology use is the imagined moment of a black woman giving
birth to a white infant, or a white woman giving birth to a black
infant. Blackness has been so othered that the intimacy, the
ultimate intimacy, of the moment seems impossible and strange
and perhaps even alien. The strangeness and seeming
impossibility of the image only shows the extent to which
motherhood has been used to maintain the color line. The level of
unease generated by interracial birth may also indicate that the
notion of race that assumes biologically inherent difference is still
deeply embedded in the more recent notion that racial difference
is culturally constructed.' 5

Patricia Williams calls our attention to the ways that race-based imagery
and assumptions in our culture animate our thinking about interracial ART
mistakes: "Is there not something unseemly, in our society, about the
spectacle of a white woman mothering a black child? A white woman
giving totally to a black child; a black child totally and demandingly
dependent for everything, sustenance itself, from a white woman."'' 86

Insights of scholars like Ikemoto and Williams support my conclusion that
unconscious or subconscious race-based assumptions tainted the decision
making process in Perry-Rogers v. Fasano.

In line with the argument about how the court treated Vincent
differently from Joseph/Akeil by relying on genetic tests to define
parenthood, we need to examine what the court left out about what the
Fasanos knew or could have known. The court does not take notice of the
fact that the Fasanos had no information about a specific couple waiting for
the birth of this child. Though the Fasanos knew there had been a mix-up at
the clinic, there is no evidence that they were informed that the Rogerses
were anxiously waiting in the wings for the baby that they were carrying.
For all they knew, the Rogerses could have had babies through the IVF
process and chosen to forget about the mix-up. Or, the Rogerses could have
been trying to put that horrific experience behind them. The clinic did not
breach the parties' confidentiality by informing them about one another: the
Rogerses did not know about the pregnancy and the Fasanos did not know
about the Rogerses. The only reason the Fasanos would have had for giving
up Joseph/Akeil at his birth was the divergence of their and his physical
features that correlated with notions of race.

185 Lisa C. Ikemoto, The In/Fertile, the Too Fertile, and the Dysfertile, 47 Hastings

L.J. 1007, 1017 (1996) (footnotes omitted).
186 Patricia Williams. supra note 178.

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Genes, Parents, and ARTs

The physical mismatch becomes the sub silentio justification for
denying the Fasanos a relationship with their son. 117 The court impliedly
tells us that when Joseph/Akeil was born and the Fasanos noticed his racial
difference, there was cause for them to give up their child, rather than to
further their bond with him. Since the Fasanos were not aware that other
"parents" were prepared to take this child at the time of his birth, they
would have had to give the child up to the State or the IVF clinic. 88 It
seems extremely unusual to expect a birth mother to give her child to the
State when she wants him herself, solely because he looks different from
her. Further, it seems to imply that a person "ought" not bond with a child
of a different race. Certainly that conclusion ends up "taking race into
account" in an impermissible way (whether mentioned or not).

By not discussing race, the court is ultimately taking race into
account in an unexamined way. No other parents of children born through
IVF have been required to test their children upon birth and then, if the
children's genetic make-up is different from their parents due to a clinic
mistake, to relinquish them to the State (or fail to bond with them). We have
no idea how often this has happened in the absence of racial difference. We
also have no idea how often it happens when there is racial difference,
although the "sensational" nature of these cases tends to call them to the
media's attention. 89

The court insists its decision does not turn solely on genetics, but if
it is not using genetics as the key, then its decision must turn on race or skin
color. No doubt the court would be loath to admit its reliance on race rather
than on genetics. Even though the court mystifies its reliance on genetics, if
we agree that the real basis for its judgment is genetics, not skin color, then
I would still argue that genetic essentialism necessarily ends up taking race
into account in an impermissible way. The dividing lines along the circle of
genetics, physical features, biological racism, and "race as a social-political
construction" become blurred and the danger of reproducing a racist
understanding looms large.

187 Ironically, in Hamicher v. Univ. of Utah Med. Ctr., 962 P.2d 67 (Utah 1988),

the Utah Supreme Court chastised the parents who complained because their child had
physical features dissimilar to theirs. The court ridiculed the couple and indicated that they
should be happy to have given birth to healthy children through this extraordinary
technological feat. Obviously, the Perry-Rogers v. Fasano court reached the opposite
conclusion.

188 Although after the fact we know that there were people who wanted to rear the

child, the Fasanos had no such knowledge at his birth when his racial difference became
apparent. If there were no parents to take this child, the Fasanos would have had to
relinquish him to the State for foster care or adoption. Considering the fact that they wanted
this child, it seems an incredible decision for the court to make.

189 Michael Seamark & Beezy Marsh, How Many More IVF Baby Blunders?,

Daily Mail (London), July 9, 2002, at 1.

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64 Columbia Journal of Gender and Law [Vol. 12:1

Genetic essentialism creates troubling racial issues in addition to
the troubling sex-based issues discussed in the previous subsection. The
application of a genetic essentialist ideological framework in a case like this
one proves even more disturbing than in many other ARTs debacles. Most
race-based critiques of ARTs argue that (1) these technologies are not
adequately available to people of color, (2) use of these technologies
reproduces the racist ideology in our society that values white babies and
their physical features over children of color and their physical
characteristics, and (3) people of color will be "victims" of this technology
as an underclass of breeders or in ways that will cause them to lose custody
of their children.' 9° These powerful critiques of racism in society and racism
in the uses of ARTs advise extreme caution. They challenge infertility
treatment providers and bioethicists to intervene in societal racism
preventing ARTs from reproducing systemic racism while trying to
"reproduce" individual persons. Despite the ringing truths and poignant
concerns in those critiques, ironically in the Perry-Rogers v. Fasano case,
each of those claims is inapposite. This case may be the exception to the
rule in terms of how the racial dynamics play out, but it is a real case
nonetheless.

First, the Rogerses, who had their embryo mistakenly implanted in
another woman, are an African-American couple who clearly had access to
ARTs. There is no doubt that ARTs are prohibitively expensive for most
couples.' 9' Their expense alone makes them unavailable to many African-
American families who are impoverished or of only moderate means
because of systemic racism.1 92 The "lack of access for people of color"

'0o Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the
Meaning of Liberty, supra note 109; Patricia J. Williams, supra note 178; Anita L. Allen,
The Black Surrogate Mother, 8 Harv. BlackLetter L.J. 17 (1991); April Cherry, Nurturing in
the Service of White Culture: Racial Subordination, Gestational Surrogacy, and the Ideology
of Motherhood, 10 Tex. J. Women & L. 83 (2001); Beverly Homsburgh, Jewish Women.
Black Women: Guarding Against the Oppression of Surrogacy, 8 Berkeley Women's L.J. 29
(1993); Lisa C. Ikemoto, Destabilizing Thoughts on Surrogacy Legislation. 28 U.S.F. L.
Rev. 633 (1994); Dorothy E. Roberts, The Genetic Tie, 62 U. Chi. L. Rev. 209 (1995);
Symposium, Looking Toward the Future: Feminism and Reproductive Technologies, 37
Buff. L. Rev. 203 (1988-89); Patricia J. Williams, Spare Parts, Family Values, Old Children,
Cheap, 28 New Eng. L. Rev. 913 (1994).

91 See Beh, supra note 109, at 173 n.362 (1998), cited in Sherri A. Jason,

Comment, "Loving Infertile Couple Seeks Woman Age 18-31 to Help Have Baby. $6,500
Plus Expenses and a Gift": Should We Regulate the Use of Assisted Reproductive
Technologies by Older Women?" II Alb. L.J. Sci. & Tech. 287 (2001). The cost of
infertility treatments ranges from $1,500 to $10,000 per cycle. James B. Roche, After
Bragdon v. Abbott: Why Legislation is Still Needed to Mandate Infertility Insurance, 11
B.U. Pub. Int. L.J. 215, n.95 (2002) (citing Peter J. Neumann, Should Health Insurance
Cover IVF? Issues and Options, 22 J. Health Pol. Pol'y & L. 1215, 1216-19 (1997)).

192 Laurie Nsiah-Jefferson & Elaine J. Hall, Reproductive Technology:

Perspectives and Implications for Low-Income Women and Women of Color, in Healing
Technology: Feminist Perspectives 93 (Kathryn Strother Ratcliff et. al. eds., 1989); Dorothy



Genes, Parents, and ARTs

critique, while true in many situations for African-Americans wanting to
utilize ARTs, particularly given higher infertility rates for African-
Americans,193 fails to explain why this case reproduces an underlying
societal racism.

Second, the technology was used, in part, because the Rogerses
wanted to reproduce themselves as African-Americans. Nothing about their
participation in this ART process indicates that they preferred a white or
European-American baby to their own. They engaged in the technology in
order to create an African-American child. In addition, while it is clearly
arguable that the European-American family may have participated in IVF
because they wanted white children rather than children of color, their
conduct after the birth belies that conclusion. The Fasanos did not seem to
value only white babies, as they were content to claim the African-
American child as their own.

Moreover, in response to the third critique mentioned above, the
woman treated as a "breeder" in this case was Donna Fasano, a European-
American woman, not Deborah Perry-Rogers, an African-American
woman. But let there be no mistake that, in this case, there was never a
design to use one woman for the benefit of another or to pay one woman for
her gestating services to benefit another. Yet, if we are to make any sense of
the court's decision denying Donna Fasano visitation with the child she
bore, we must conclude that the court viewed her solely as a "breeder" or
"incubator." This conclusion reinforces the sex-based or gender-based
critique made earlier, but at least for this case, cuts against the usual race-
based critique of ARTs.

Last, but not least, the usual race-based critiques of ARTs seem to
fail because this is a case where the law permits a couple from a
traditionally oppressed racial group to prevail. The Rogerses sought sole
custody of "their" African-American child without visitation rights for the
white parents, and they won. 94 Under the particular facts of Perry-Rogers,

Roberts, Killing the Black Body supra note 109, at 253-56. For general analyses of the
disproportionate lack of wealth among African-Americans, see Dalton Conley, Being Black,
Living in the Red: Race, Wealth, and Social Policy in America (1999); Melvin Oliver &
Thomas Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality
(1995).

193 Raizel Liebler reports that blacks have an infertility rate 1.5 times greater than
whites. Raizel Liebler, Are You My Parent? Are You My Child? The Role of Genetics and
Race in Defining Relationships after Reproductive Technological Mistakes, 5 DePaul I.
Health Care L. 15, n.67 and accompanying text (2002) (citing a Congressional Office of
Technology Assessment report on Infertility from 1988, at
http://www.wws.princeton.edu/cgi-bin/byteserv.prl/-ota/disk2/1988/8822/8822.PDF (last
visited Oct. 10, 2002)). See also New York State Task Force on Life and the Law, Assisted
Reproductive Technologies: Analysis and Recommendations for Public Policy 11 (1998).

194 This seemingly antiracist result may, in fact, reflect a more deep seated, white

supremacist view that abhors visions of white women giving birth to black children. See
Patricia Williams, supra note 178.

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genetic essentialism yields the unwavering conclusion that the African-
American child is the child of the African-American parents and should be
exclusively in their custody.

As an antiracist strategy in a white supremacist society, if
application of a genetics-based analysis works to privilege parents who
belong to a subordinated or oppressed race,1 95 shouldn't we argue for its
continuation, rather than seeking its rejection? My conclusion is that we
should not. The fact that African-American parents won in this case may be
an anomaly. Other situations applying a genetic essentialist approach may
disadvantage more African-American families or families of color than not.
The reasons for choosing or rejecting a genetic essentialist approach cannot
be purely situational.

Rejecting a genetic essentialist approach because it tends to
reproduce a biological racism does not mean, however, that race should not
be taken into account in deciding the custody and visitation issues in Perry-
Rogers v. Fasano. In America, in the 21st century, it is still irresponsible and
racist to say "regardless of race.' 96 Race in the United States is about
power and politics, about social castes and economic classes, about shared
histories and cultural practices, about externally imposed stereotypes and
exclusions. One cannot ignore these inequalities and injustices in the name
of colorblindness. Just as a genetics-based approach tends to produce
biological racism in a race-based society, colorblindness (or ignoring race
entirely) tends to reproduce cultural and political racial dominance in a
race-based society. In a society born in racism with slavery as its primary
means of production a society whose founding documents and principles
speak of liberty and equality but simultaneously accommodated the
persistence of slavery,197 a society that fought a bloody civil war in part to

195 Though the narrative and argument in this essay specifically address

black/white, African-American/European-American racial dynamics, these same concerns
arise with Latinos/as, when understood as a racial category, and Asians. See generally
Robert S. Chang, Disoriented: Asian-Americans, Law and the Nation State (1999); Latino/a
Condition: A Critical Reader (Richard Delgado & Jean Stefancic eds., 1998); Frank Wu,
Yellow: Race in America Beyond Black and White (2001). For a discussion of Latinos/as
identity as race-based, see Ian F. Haney Lopez, supra note 167.

196 Martin Luther King, Jr.'s dream that people will be judged by the content of

their characters rather than the color of their skin is still merely an aspiration for our society.
Martin Luther King, Jr., I Have a Dream (Aug. 28, 1963). I recognize that if we ever (dare I
say, "when we ever"?) achieve that day when the physiological features of racial identity are
as "insignificant as eye color" to one's economic well-being, success, opportunities, and
power, then my arguments will need to be changed. I continue to participate in the struggle
that would make that so. I anxiously await a time when the arguments in this section are no
longer salient and would gladly refine them at that point.

197 Derrick Bell, And We Are Not Saved: The Illusive Quest for Racial Justice
(1987); Derrick Bell, Race, Racism and American Law (Aspen Law 4th ed. 2000); Thurgood
Marshall, Reflections on the Bicentennial of the United States Constitution, 101 Harv. L.
Rev. 1 (1987).

[Vol. 12:1



2003] Genes, Parents, and ARTs 67

attempt to ameliorate the injustices and harms of slavery and then within
twenty years sold out its equality aspirations again with the Hayes-Tilden
compromise; 98 a society that required decades of civil rights struggle to
guarantee these same citizens and their progeny the rights they should have
had from the country's founding and certainly after the Civil War and
emancipation;' 99 a society where to this day all the statistical data confirm
that people of color, and particularly African-Americans, are second-class
citizens suffering more poverty, unemployment and underemployment, and
hunger, and more of whom live in desperate, unsafe, and frequently
uninhabitable conditions in inner cities and or rural environments than
European-Americans; 20 in a society where African-Americans are subject
to excessive violence, disproportionate imprisonment, police brutality,20'
and racial profiling;202  where African-Americans are significantly
underrepresented as leaders in business, professions, and politics;20 3 where

198 See Eric Foner, Reconstruction: America's Unfinished Revolution 1863-1877,

575-601 (1988).

199 Howard Ball, A Defiant Life: Thurgood Marshall & the Persistence of Racism
in America (1998); Taylor Branch, Parting the Waters: America in the King Years 1954-63
(1988); Taylor Branch, Pillar of Fire: America in the King Years 1963-65 (1998); Richard
Kluger, Simple Justice (1975); The Eyes on the Prize: Civil Rights Reader (Claybome
Carson et al. eds., 1991); Juan Williams, Eyes On The Prize: America's Civil Rights Years,
1954-1965: A Companion Volume to the PBS Television Series (1987); Howard Zinn, A
People's History of the United States. 1492-Present: Twentieth Anniversary Edition (1999).

200 Martin Camoy, Faded Dreams: The Politics of Economics and Race in America

(1994); Dalton Conley, Being Black, Living in the Red: Race, Wealth, and Social Policy in
America (1999); Andrew Hacker, Two Nations (1995); Manning Marable, How Capitalism
Underdeveloped Black America: Problems in Race, Political Economy & Society (1983);
Dorothy K. Newman et al., Protest, Politics, and Prosperity: Black Americans and White
Institutions, 1940-1975 (1978); Melvin Oliver & Thomas Shapiro, Black Wealth/White
Wealth: A New Perspective on Racial Inequality (1995); see generally Institute for Research
on Poverty, at http://www.ssc.wisc.edu/irp/ (and links therein) (last visited Sept. 27, 2002).

201 Allen J. Beck & Paige M. Harrison, U.S. Dep't of Justice, Prisoners in 2000

(Aug. 2001); David Cole, No Equal Justice: Race and Class in the American Criminal
Justice System (1999); Samuel Walker, Cassia Spohn, & Miriam DeLone, The Color of
Justice: Race, Ethnicity and Crime in America (1996); Ronald H. Welch & Carlos T.
Angulo, Justice On Trial: Racial Disparities in the American Criminal Justice System
(Leadership Conference on Civil Rights/Leadership Conference Education Fund May 2000);
Angela Y. Davis, Masked Racism: Reflections on the Prison Industrial Complex ColorLines
(Fall 1998), also available at http://home.ican.net/-edtothlawprisonrace.html (last visited
Sept. 27, 2002); Angela Y. Davis, Women in Prison: African-American Women have fastest
rising incarceration rate in U.S, Essence (Sept. 2000); Federal Bureau of Prisons, Quick
Facts (May 2002), available at http://www.bop.gov/fact0598.html (last visited Sept. 27,
2002).

202 David A. Harris, Driving While Black: Racial profiling on our Nation's

Highways, An ACLU Special Report, June 1999, available at
http://www.aclu.org/profiling/report/index.html (last visited Sept. 27, 2002).

203 Thomas Dye, Who's Running America? Institutional Leadership in the United

States (1996); Lani Guinier, The Tyranny of the Maiority (1994); David A. Bositis, Joint



Columbia Journal of Gender and Law

most African-American children experience under funded, inadequate
educational opportunities and are tracked into school classes with low
expectations of success that lead to dead ends; 2

0
4 a society where African-

Americans suffer from inadequate health care and high infant mortality
rates;20 5  and where African-Americans are too-frequently portrayed
negatively in the media as criminals, thugs and ne'er-do-wells;2 0 6 in such a
society, in this society, we cannot say that race doesn't matter2° 7 or that
issues of race can be ignored. To be colorblind in this situation is to be blind
to the realities of the ways that racism continues to affect the lives and

208opportunities of most African-Amencans. Race is not a biological
category, but in America, it is a political, socio-economic and cultural one.
Until we have eradicated racism from our core, we cannot in good faith
allow the law to ignore race, even in the name of such a laudable-sounding
goal as colorblindness. At this historical juncture an anti-racist strategy
must take race into account.

The law has a responsibility to do all it can to make sure that a child
whose destiny is in its hand is not reared by racist parents. A passive
assumption that there are no relevant race-based factors in deciding issues
of child custody and parentage is completely inadequate. No child should be
taught that he or she is inferior (or superior) based on racially correlated
physical attributes or cultural norms. Children who are likely to be
subjected to societal and political racism need parents who can understand
and identify this dynamic, and who can teach them their history. Parents of
a child subjected to racial prejudices and discrimination must be able to

Center for Political and Economic Studies, Black Elected Officials, A Statistical Summary
2000, at http://www.jointcenter.org/whatsnew/beo-2002/.

204 Jonathan Kozol, Amazing Grace: The Lives of Children and the Conscience of

a Nation (1995); Jonathan Kozol, Savage Inequalities: Children in America's Schools
(1991); Jonathan Kozol, Death at An Early Age: The Destruction of the Hearts and Minds of
Nero Children in the Boston Public Schools (1967); Gary Orfield, Susan B. Eaton, & the
Harvard Project on School Desegregation, Dismantling Desegregation: The Quiet Reversal
of Brown v. Board of Education (1996).

205 Vemellia R. Randall, Racist Health Care: Reforming a Racist Health Care

System to Meet the Needs of African-Americans 3 Health Matrix 127, 132 (1993); Sidney
D. Watson, Race, Ethnicity and Quality of Care: Inequalities and Incentives, 27 Am. J.L. &
Med. 203 (2001); Infant Mortality Rates by Race and Hispanic Origin of Mother. 1990-
1998, available at http://raceandhealth.hhs.gov/3rdpgBlue/Infant/k2.gif (last visited Nov. 5,
2002); Unequal Treatment: Confronting Racial and Ethnic Barriers in Health Care (Brian D.
Smedley et al. eds.), available at http://www.nap.edu/books/030908265X/html/ (last visited
Nov. 5, 2002).

206 Robert Entman & Andrew Rojecki, The Black Image in the White Mind: Media

and Race in America (2000); HYPE: Managing the Black Image in the Media, at
http://www.ayaed.com/hype/index.htm (last visited Nov. 5, 2002).

207 Comel West, Race Matters (1993).

208 Patricia Williams, Seeing a Colorblind Future: The Paradox of Race (1998).

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2003] Genes, Parents, and ARTs

prepare the child to deal with this aspect of life, to nurture the child's self-
image and capacities for success, to offer the child a sense of cultural and
racial pride, and to guide the child to live an ethical, responsible life.209

While courts cannot intervene in every child's life to assure that the child
will not bear a socially-imposed and psychologically-internalized mark of
inferiority,210 courts can, and must, act in cases when issues of a child's
parentage and well-being are before them. Courts are obliged by their
commitments to justice to take the political, social, cultural and ideological
implications of race into account in their decision-making.

The debates about transracial adoption may prove informative here.
The National Association of Black Social Workers has argued that placing
African-American children in European-American families for adoption is a
form of racial and cultural "genocide. '211 They specifically recommend that
African-American children be adopted by African-Americans families
whenever possible. Likewise, in response to a history of U.S. government-
backed removal of Native American children from their tribal communities
and their placement in European-American families or institutions, the
Indian Child Welfare Act requires that decisions about placement of Native
American children for adoption be made first and foremost by their tribe
with a strong preference for tribal parentage, rather than by state or federal
courts with their usual preferences for European-American (or even

209 Dorothy Roberts discusses the role that black parents must play in rearing black

children:

A Black parent's essential contribution to his or her children is not
passing down genetic information but sharing lessons needed to survive
in a racist society. Black parents transmit to their children their own
cultural identity and teach them to defy racist stereotypes and practices,
training their children to live in two cultures, both Black and white.
Some feel they must cultivate in their children what W.E.B. Du Bois
described as a double consciousness; others see their task as preparing
their children 'to live among white people without becoming white
people.' Some Black sociologists have opposed transracial adoption on
the ground that only Black parents are capable of teaching Black
children these necessary 'survival skills.' (footnotes omitted).

Dorothy Roberts, Killing the Black Body: Race. Reproduction, and the Meaning of
Liberty, supra note 109, at 262.

210 Charles Lawrence III, The Id, The Ego and Equal Protection: Reckoning with

Unconscious Racism 39 Stan. L. Rev. 317 (1987).

211 Dorothy E. Roberts, The Genetic Tie, 62 U. Chi. L. Rev. n.98 (citing Position

Paper developed at the National Association of Black Social Workers' Conference in
Nashville, Tenn., Apr. 4-9, 1972, reprinted in Rita James Simon & Howard Alstein,
Transracial Adoption 50 (1977)). See also Twila L. Perry, The Transracial Adoption
Controversy: An Analysis of Discourse and Subordination, 21 N.Y.U. Rev. L. & Soc.
Change 33 (1993-94).



Columbia Journal of Gender and Law [Vol. 12:1

African-American) families 2  Both these approaches respond to the
perceived dangers to children of isolating them in families who undermine
or sever their cultural identity and racial roots. In response to these
concerns, Congress passed the Metzenbaum Multiethnic Placement Act in
1994, allowing race as a permissible consideration in adoption placement.2 13

A strong countermovement in support of transracial adoption and foster
care developed, and that provision of the Multiethnic Placement Act was
repealed in 1996, explicitly prohibiting states and adoption placement
agencies from using race, color, or national origin as a criteria for foster or
adoptive placements.214 Some theorists argue that despite the change in the
law, race-matching continues to be promoted in the guise of a preference
for kinship care.21 5 An extensive debate exists in the literature about
whether race-matching in adoption is a good thing.1 6

212 25 U.S.C. §§ 1901-64 (1994). The Act, at § 191 1(a) and (b), states that a tribe

shall have exclusive jurisdiction "over child custody proceeding involving an Indian child
who resides or is domiciled within the reservation of such tribe" and prefers in cases
involving Indian children off the reservation that the state transfer jurisdiction to the tribe.
See Barbara Atwood, Identity and Assimilation: Changing Definitions of Tribal Power over
Children, 4 Minn. L. Rev. 927 (1999). Whether this statutory preference for tribal
determinations of child custody is understood to be about sovereignty instead of race, race is
still a formidable guiding force in this adoption law.

213 Howard M. Metzenbaum, Multiethnic Placement Act of 1994, Pub. L. No. 103-

382, §§ 551-54, 108 Stat. 4056, (codified, as amended, at 42 U.S.C. § 1996(b) and 42 U.S.C.
§ 5115a (1994)).

214 42 U.S.C. § 1996(b) (1996). This is now a final rule of the U.S. Department of

Health and Human Services. Administration on Children, Youth and Families (ACYF),
Administration for Children and Families (ACF), & Department of Health and Human
Services (DHHS), 45 C.F.R. §§ 1355-57 (2000). See also Suzanne Brannen Campbell,
Taking Race Out of the Equation: Transracial Adoption in 2000, 53 SMU L. Rev. 1599
(2000) (a discussion of the legislative history and considerations).

215 See, e.g., Elizabeth Bartholet, Correspondence, Private Race Preferences in

Family Formation, 107 Yale L.J. 2351 (1998) (responding to R. Richard Banks, The Color of
Desire: Fulfilling Adoptive Parents' Racial Preferences Through Discriminatory State
Action 108 Yale L.J. 875 (1998)).

216 See Christine M. Metteer, A Law Unto Itself: The Indian Child Welfare Act as

Inapplicable and Inappropriate to the Transracial/Race-Matching Adoption Controversy, 38
Brandeis L.J. 47 (1999) (outlining the debate and distinguishing race-matching from what
occurs under the Indian Child Welfare Act). See generally Symposium on Transracial
Adoption, 6 B.U. Pub. Int. L.J. 381 (1997). For examples of writings supporting race-
matching, see R. Richard Banks, The Color of Desire: Fulfilling Adoptive Parents' Racial
Preference Through Discriminatory State Action. 107 Yale L.J. 875 (1998); and Cynthia G.
Hawkins-Leon, The Indian Child Welfare Act and the African American Tribe: Facing the
Adoption Crisis, 36 Brandeis J. Fam. L. 201 (1997-98). For critiques of race-matching, see
Elizabeth Bartholet, Nobody's Children: Abuse and Neglect, Foster Drift, and the Adoption
Alternative 135-40 (1999); Elizabeth Bartholet, Family Bonds: Adoption and the Politics of
Parenting (1993); Katharine Bartlett, Comparing Race and Sex Discrimination in Custody
Cases, 28 Hofstra L. Rev. 877 (2000); Kim Forde-Mazrui, Note, Black Identity and Child
Placement: The Best Interests of Black and Biracial Children, 92 Mich. L. Rev. 925, 959-62



Genes, Parents, and ARTs

Those who advocate race-matching would no doubt reject the
approach I am promoting in this section. Nonetheless, I believe an approach
that assures that a child is put into a family environment sensitive to the
racial dynamics the child will encounter during his/her life and that the
family is determined to nurture the child's cultural and social connections,
goes a long way towards satisfying some of the opposition's concerns.

While some aspects of this adoption debate seem analogous to the
issues the court must resolve in Perry-Rogers v. Fasano, there is a critical
difference. This is not a case where the state or courts are removing a child
from his natural parents to place him in the home of a differently-raced
couple/parent. In this case, Joseph/Akeil was born into the home of
differently raced natural parents, but is subsequently claimed by a same-
race genetic parent-couple. The court is challenged to determine the custody
or visitation rights of the differently-raced natural parent. This situation is
more analogous to a traditional custody battle between genetic parents of
different races than it is to transracial adoption.1 7

In a case directly addressing the issue of race in a custody dispute
between natural parents, the U.S. Supreme Court, in Palmore v. Sidoti" 8 in
1984, determined that the state may not take race and race-based societal
prejudices into consideration in custody cases. The European-American ex-
husband in Palmore argued for a "race-matching" approach that would
award custody of his European-American children to him. He claimed that
the reality of social, racist prejudices would negatively impact his children's
lives if they were placed with his European-American ex-wife and her new
African-American husband. The Court clearly rejects the ex-
husband/father's approach.1 9 The Palmore court mandates that the law take
a "colorblind" view, despite its recognition that, in fact, race plays a
powerful role in the children's lives. Arguably, the Court did not act from
colorblindness, but with a vivid recognition of the racial context. The Court
acknowledged the societal prejudices and articulated a powerful
commitment to overcoming their pernicious effects. The Court concluded
that those effects could be overcome better by refusing to succumb to the

(1994); and Randall Kennedy, Orphans of Separatism: The Painful Politics of Transracial
Adoption, Am. Prospect, Spring 1994, at 38-42.

217 See Katharine Bartlett, supra note 216, for an extensive discussion of custody

battles between differently raced parents (particularly n.61) and differently raced adoptive
parents and children (particularly n.62).

218 466 U.S. 429 (1984) ("Public officials sworn to uphold the Constitution may

not avoid a constitutional duty by bowing to the hypothetical effects of private racial
prejudice that they assume to be both widely and deeply held." Id. at 433.). See also J.H.H.
v. O'Hara, 878 F.2d 240, 244 (8th Cir. 1989).

219 In Palmore, the genetic parents were both European-American, but after the

couple separated, the mother co-habited with and then married an African-American man.
The genetic father argued that he should be given custody of the child, in part, because the
child would suffer living in a home with parents of different races.

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racial prejudices of the day rather than acceding to them. Despite its
rhetoric of color-blindness, the court manifested a profound color
consciousness and antiracist sentiment. Palmore makes clear that the court
will not tolerate the use of race-based assumptions to interfere with
relationships between parents and their children. Unfortunately, this lesson
was lost on the Perry-Rogers v. Fasano court.

Perhaps the Perry-Rogers v. Fasano court missed the message of
Palmore, because the U.S. Supreme Court in that case articulated its
reasoning in terms of colorblindness. The Court declared that equality and
nondiscrimination, which the Court recognized as its primary long-term
goals, require colorblindness. The law's ideological mating of
"colorblindness" with equality and non-discrimination is problematic at this
historical moment.22

0 At the dawn of this century, it continues to be
particularly inappropriate to omit reflection on the consequences of race
stratification and power imbalances on the lives of children when making
determinations about their custody and parentage. The law must find ways
of taking the reality of race relations into account, while refusing to
reinforce disadvantages and harms flowing from racist subordination. That
is actually what the Supreme Court did in the Palmore case.

Parents, or potential parents, in cases of racial differences can be
treated equally and non-discriminatorily, even when race is openly
considered and even with an understanding that racial factors cut differently
for different racial identities. The answer is neither heedless race-matching
nor colorblindness, but a careful examination of whether particular parents

220 For a fascinating symposium in which several articles deal with issues of

colorblindness, see Symposium on Law in the Twentieth Century, 88 Cal. L. Rev. (2000). In
that volume, Angela Harris writes, "The equation of race law with equality law tends to
obscure the law's participation in creating and maintaining racial distinctions, and thus
subtly perpetuates the notion that races just naturally are and that equality law simply
provides a neutral forum for conflict among them." Angela Harris, Equality Trouble:
Sameness and Difference in Twentieth-Century Race Law, 88 Cal. L. Rev. 1923, 1927
(2000). Harris argues that whether we are in a century that views "equality as sameness"
(colorblindness) or "equality as difference" (color hierarchy), both formulations of equality
have been able to coexist in the United States with relations of domination and exclusion. By
applying a "MacKinnonesque" feminist analysis of equality to race law, Harris shows the
necessity for a power or dominance analysis of equality, because neither a sameness nor a
difference approach to equality has been capable of adequately remedying racial domination
and power imbalances. For a sample of MacKinnon's dominance analysis, see Catharine A.
MacKinnon, Difference and Dominance: On Sex Discrimination, in Feminism Unmodified:
Discourses on Life and Law (1987). See also Reva B. Siegel, Discrimination in the Eyes of
the Law: How "Color Blindness" Discourse Disrupts and Rationalizes Social Stratification,
88 Cal. L. Rev. 77, 84, 87 (2000) (arguing that race-neutral equality jurisprudence fosters
principles of "group-blind distribution without disestablishing group stratification," and that
"color blindness discourse both constrains and legitimates practices that maintain racial
stratification"). Siegel further suggests that "one needs a concept of social stratification - of
status inequality among groups arising out of the interaction of social structure and social
meaning - in order to make sense of the blindness trope at the heart of antidiscrimination
law." Id. at 77-78.

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Genes, Parents, and ARTs

understand the history and political dynamics of racial groupings in this
country and in their communities. If a child is from a subordinated racial
group, the parents must evidence a commitment to protect the child from
racial domination, while nurturing the child's racial and cultural identity. If
a child is a member of the dominant racial grouping, an analysis of
parenting abilities should examine the parent's capacity to bring up the
child with racial awareness and nonracist values. At a minimum, this
inquiry must be included in a "best interests of the child" analysis for
custody disputes between differently-raced parents or between parents
where at least one parent is differently-raced from the child.22' Ultimately, a
parent's ability to give a child what he or she needs is not based on the
parent's genetic contribution to the child's physiognomy, but on the
parent's race-consciousness and openness to continued learning in
multiracial environments.

A genetic essentialist approach results in unthinking race-matching.
Genetic essentialism reinstates a discredited biological notion of race that
completely ignores social stratification and power imbalances regarding
racial classifications. 222 A genetics-based analysis of legal parenthood,
especially when it considers itself race-neutral because it does not take race
into account, is a step backwards in our evolving jurisprudence of race. So
too is an analysis of parenthood that aggressively refuses to discuss race in
a racially-charged situation, yet unconsciously applies race-based
assumptions about the inappropriateness of interracial intimacy and the
biology of race. If our goal is a nonracist jurisprudence, racial dynamics

22 Dean Katharine Bartlett has been a strong critic of the "best interests of the

child" standard for custody determinations, because she argues that it is currently too
indeterminate and leaves too much to the individual judge's predilections and prejudices.
Bartlett, supra note 216, at 894. She prefers the proposed more determinant ALI standard
allocating custody based on pre-divorce proportion of caretaking. Though she concludes that
discrimination on the basis of either sex or race should be "categorically prohibited," she
also recognizes that an appropriate analysis of the child's best interests may include race-
related inquiries such as the one I suggested in the text:

It means no race-matching or sex-matching. It does not mean that a
child's need for a healthy self-image, whether it relates to sex or race,
cannot be considered. A parent's ability to meet a child's needs for a
positive self-image should be relevant to the same extent as other
parental abilities. However, nothing should be presumed about a parent's
ability based on his or her race or sex.

Id. at 893. 1 would argue further that same race, dominant race, or differently-raced parents
should all be subjected to the same analysis in determining the appropriate placement for a
child whose custody is being decided by a court.

222 "[T]he law can become rather muddled when it unthinkingly adopts biological

definitions to suit the needs of social distinctions.... The result is that biology distorts law
and law, in turn, distorts biology." R. Alta Charo, Biological Determinism in Legal Decision
Making: The Parent Trap, 3 Tex. J. Women & Law 265, 266 (1994).

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must be carefully examined to make sure that legal decisions are not
continuing a pattern of racial domination or stratification. Such an approach
that directs courts to investigate the racial awareness and sensitivity of
parents denies the Rogerses automatic entitlement to the African-American
child because of their racial similarities or genetic link; likewise it would
permit the Fasanos custody and visitation despite their racial differences.
Both families are on relatively equal footing before a judge who is
determining the child's best interests, although the Fasanos admittedly have
a greater burden to prove their racial awareness, sensitivity, and cultural
consciousness to the child's potential struggles as an African-American in a
racially stratified society than do the Rogerses. It is then incumbent upon
the court to instruct whichever set of parents prevails under the best interest
inquiry about their continuing obligation to deal with racial awareness and
sensitivity issues during the child's life.

In most cases involving custody disputes between parties engaged
in assisted reproductive technologies, these issues of racial awareness and

22cultural consciousness will not arise. 23 When race or ethnicity does become
an issue in these cases, however, courts cannot turn a blind eye to the
realities of societal racism. Those issues do not disappear simply because
they are not acknowledged. Individual judges may not be particularly well-
equipped by experience or their own awareness to evaluate the impact of
racial dynamics on a child's best interests or parental fitness. Courts will
necessarily have to rely on the advice of experts in such matters to gather
adequate information to make informed judgments about these qualities in
the same ways they make informed judgments about other intangible
aspects of familial relationships. So long as courts are empowered to make
best interests determinations for children in custody disputes, questions
about racial awareness and nonracist values ought to be included in that
judgment. Defaulting to solely genetics-based definitions of parenthood or a
simplified race-matching approach risks perpetuating patterns of racial
inequality and domination.

V. CONCLUSION

ART mistakes force the legal system to examine its underlying
assumptions about genes, sex, race, and legal parenthood. While questions
about race, sex and genes have always existed in families, as the Perry-

223 A compelling argument can be made that issues of racial sensitivity and
awareness should be addressed in all ART mix-up cases where courts are deciding the "best
interests" of a child or the appropriateness of particular parents having custody, whether all
the parties, including the children, are European-American or not. I realize that the
likelihood of persuading a court to utilize this analysis in an ART mix-up case where all
parents and children are identified as being of the same race is negligible, so I will not
pursue this argument in the text right now. I am persuaded, however, that the argument is
sound and should be developed.

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Genes, Parents, and ARTs

Rogers v. Fasano case illustrates, those questions may be writ large in
disputes arising from ART fiascos. Cases about embryo mix-ups,
particularly those involving couples and children of different races, are
valuable heuristic models to test our judicial conceptions of legal
parenthood. The complicated issues arising from ART mistakes force us to
work even harder to discover the underlying assumptions in our legal
notions of kinship and to ask ourselves about the values we want reflected
in our applications of law in the future. The turn of the new millennium
combined with the increasing use of complex reproductive technologies
present a perfect opportunity for us to discard the biases that have tainted
our understandings of reproduction and law in the past. As science and
technologies grow more sophisticated, so should our insights about equality
and human relationships. When we think about how the law ought to deal
with these previously unimagined reproductive consequences of ART
mistakes, we need to think about how racism and sexism continue to distort
our legal understandings in the present and how we must prevent that
distortion from occurring in the future.

An increasing number of courts today believe that the science of
genetics provides a solution to the legal problems that the science of ARTs
has wrought. In Perry-Rogers v. Fasano, the court ultimately relied on
genetics, despite its claims to the contrary, to determine whom the rightful
parents were of the child born from the mixed-up embryo. When courts
define parenthood genetically, they revive harmful sex-bias. A genetics-
based approach to determining legal parenthood reincorporates a male-bias
in law by valuing all of men's biological contributions to reproduction
(gametes), but valuing only a small part of women's biological
contributions to reproduction (gametes, but not gestation, labor, or birth).
When courts make a genetics-based judgment about parenthood in the
context of differently-raced couples, their biases are compounded. When
courts assume that similar physical traits of racial group membership
describe legal and biological parent-child relationships, they risk reinstating
a biological racism, with its imprudent biological race-matching and
damaging assumptions about the illegitimacy of interracial
intimacies/families. Finally, courts perpetuate race-based injustices and
prejudices by pretending to ignore issues of race while our society and
cultures are still steeped in racial inequalities and oppression. Race as
social, political, cultural, and ideological practices, not as biological fact,
must be considered relevant when ART mistakes involve people with racial
differences. As the court's inadequate decision in Perry-Rogers v. Fasano
reveals, failure to examine these underlying race and gender assumptions
and biases ends up making the devastation of ART mistakes worse, not
better.

Society cannot expect to use technologies, including ARTs, without
mistakes. Whether negligent, reckless, or intentional, mistakes with their
unplanned consequences are inevitable. We are only human, and humans

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Columbia Journal of Gender and Law

are fallible, no matter how sophisticated our technologies become. In the
realm of bioethics, the law consistently finds itself in the awkward position
of having to resolve the contests caused by the consequences of these all-
too-human mistakes with the technologies. Although traditional tort actions
against the profit-making marketers of these technologies may serve
important societal justice goals, they do not resolve who will be the legal
parents of a child. Mistakes with assisted reproductive technologies involve
the creation of new life and disputes that go to the heart of questions of
identity and family. As citizens and members of our communities, we must
urge our legislative bodies to engage in constant study of the ever-changing
implications of these new reproductive technologies on family relationships
and to make appropriate revisions to out-dated statutes and regulations.
Unfortunately, courts often need to resolve these cases without much
legislative guidance, while the public policy, ethical, and legal debates are
still raging. Courts are bound to get the analysis wrong in some cases. They
are more likely than ever to get it wrong when they try to find quick
technical or scientific answers to complex human, familial, cultural, and
social problems. As lawyers and bioethicists we must help courts resolve
these dilemmas properly by challenging faulty analogies, and situating the
bioethical debates within the larger political and social critiques of systemic
gender, race, and class biases. We also must steer courts away from
solutions rooted solely in our current sciences, and remind courts that we
can only move forward with open, well-reasoned discussions of the issues
and our values.

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