There’s a recent article in US News & World Reports  that discusses some of these questions, but as the article makes clear, the ones involving frozen sperm are really a subset of a larger set of perplexing cases.   If you freeze sperm a child may be conceived after the death of the man who provided the sperm.   It’s also possible now to freeze eggs, so you could get the same problem there.

But we all know that there are thousands of frozen embryos around as well.  Suppose embryos are created during a person’s lifetime, but then frozen for later use.   Imagine that the person who provided the gametes then dies.   A child from those embryos is not a posthumously conceived child.   (Conception occurs when the sperm fertilizes the egg leading to the creation of an embryo.)     Nevertheless, I think cases involving embryos that were frozen at the time of the death of the person who provided the gametes are essentially the same as the frozen gamete cases.    I just don’t have a very good descriptive name for these children.

The US News article is focussed on problems of estate planning and inheritance, and these are obviously going to arise.   The thing to remember here–and what really (to my mind) can make this hard–is that eggs/sperm/embryos can be frozen for a long time.  A child could be born ten months after the death of the gamete provider or potentially ten years.   There’s a big difference here, particularly if you think of the estate problems.

Suppose a person dies and leaves their estate to be divded equally among their children.  How long do we need to wait to see how many children there are?  To say that the estate must be frozen (sorry about that) for as long as a child might potentially be created is wildly impractical.

What that article tells us is that some people have agreed on an (arbitrary) cut off point of 45 months (That’s the model probate code, which has not been widely adopted.)   I do wonder about where that span of time comes from.   Five times the normal span of a pregnancy?  (It’s hard to see why you’d use that as a metric, but what else might 45 relate to?)

And this is the problem for people who write wills–generally not the majority of the population.  For those with no wills, state intestacy statutes will control.   It’s uncertainy here that is relevant to the Social Security questions.

So all of this is just a reminder of the host of legal issues created by ART.    I’m inclined to agree that there has to be a bright line–a time after which the kids cannot count.   Figuring out where that line goes is always arbitrary, really.  But at least we could have some settled law.

First the facts:   In 2002 JV was in a relationship with Brian P.  She became pregnant.   (I realize we’re all likely to assume that Brian P is genetically related to the child, but you’ll find, as you read on, that this has never been established.   There’s a bunch of interesting side issues raised by his role which we can discuss if anyone cares to.)

The relationship between Brian P and JV fell apart during her pregnancy and he played no role in preparations for the birth of a child.   (He’s only played the most minimal role since then.)  JV, however, became friends with EC and she (EC, I mean) was willing to step up and step in:

During respondent’s pregnancy, appellant took respondent to her doctor’s appointments. Appellant was respondent’s Lamaze childbirth preparation class partner, and they often spent the night at each other’s homes. Appellant was with respondent during the birth of the minor; appellant even cut the umbilical cord.

For the first three months JV and the child lived with JV’s mother.  Then they moved in with EC.   Over the following years EC signed the child up for kindergarten and took her to various practices and doctor’s appointments.   From the accounts of witnesses, she acted as a parent to the child.

The two women had begun this relationship as friends but at some point they became a couple.   Alas, as couple’s are wont to do, they split up on 2008.   The child was nearly five.  At first, JV allowed EC to visit the child but within a year JV terminated EC’s contact with the child.

EC went to court to establish parental rights.  She argued that she had held out the child as her own child and thus was entitled to the status of presumed parent.   JV asserted that EC had never been a parent but only a godmother.

The lower court heard a lot of testimony and eventually ruled for  JV.   EC appealed.  The opinion I’ve linked to is the decision on appeal.   The appellate court, as it must, accepts the facts that were determined by the trial court.   But the appellate court does not accept the legal analysis of the trial court.  The case is remanded so that the trial court can try the analysis again.

Three points warrant emphasis.  First, the fundamental error that the trial court made was focussing on the relationship between JV and EC (the two women) rather than focussing on the relationship between EC and the child.   Holding out confers rights on a person not because of her/his relationship with an existing parent but because of the relationship with the child.  Thus, whether JV and EC were friends or lovers or whether they were open about the nature of their relationship is irrelevant.  What matters is the way EC and the child presented themselves to the world.  If they presented themselves as parent and child, then the holding out doctrine kicks in.   The earlier cases discussed by the court include some where it is quite clear that the holding out parent is not the romantic partner of the other parent.

Second, the court discusses the relationship of holding out to other bases for claiming parentage.   (I know this part will make some people unhappy.)   As to genetic connection, citing an earlier case with approval the court here says:

[L]iving with a child and treating that child as a son or daughter creates a relationship between the alleged parent and the child that is more important to the child than a biological relationship.

(Page 13.)

And as to JV’s assertion that there was no intention for EC to be a parent, it declares:

Respondent’s intent is only relevant if she manifested that intent through her conduct and precluded appellant from holding out the minor as her natural child.

(Page 17.)   Both of these statements are striking to me.

Finally, and consistent with the other case I blogged about, the case confirms the determination of California courts to use holding out for both men and women claiming parentage.  This is potentially a very important step and  could diminish the importance of the de facto parent test that has been developed over a long series of cases.  Holding out has always been easier to show, but it’s also been generally reserved for men until now.

In the end the case here is remanded to the trial court.  Essentially the trial court has another chance to do the legal analysis properly–it’s told to determine whether EC held the child out as her own.   Given the facts here I would expect that the court will make that finding, which means it must move on to other determinations.

Khrys Vaughn learned she was adopted when she was 42.    She decided to search for her origins by using a company that provides DNA testing and then matches you up with people you’re related to.   Through this process she located a third-cousin, Jennifer Grigsby.   (Grigsby had her DNA tested because she was interested in tracing her genetic lineage.)

This month, [Vaughn] drove 208 miles from her hometown here to Evansville, Ind., to meet her third cousin, the first relative to respond to her e-mails. Mrs. Vaughan is black and her cousin is white, and they have yet to find their common ancestor. But Mrs. Vaughan says that does not matter.

“Somebody is related to me in this world,” she said. “Somebody out there has my blood. I can look at her and say, ‘This is my family.’ ”

A few things from this story strike me initially.   First, and without any attention to the details, there’s an industry developing around the whole DNA testing/tracing thing.  It is, like the ART industry, it is largely a for-profit industry.  I’m not sure how important that is, really, but it’s true for both of them so it’s worth observing, I think.

It’s also an expanding industry and the more people who decide to DNA testing, the more matches will show up, the more stories like this one will show up and, I suspect, the more people will do DNA testing.  So I think it fair to say we’re looking at the early stages of a fast-growing phenomenon.   Realistically we should expect that more and more people will have access to this sort of information over the coming years.

Moving more to the details of the individual story, Vaughn is one of those people who was deceived about her origins.   In their defense, her parents initially made that choice in the 1970s, when things might have looked different to them.   But I don’t think it’s the best option and it is increasingly an untenable option.  If DNA testing continues to proliferate, the idea that your child will never know becomes fanciful, and if they’re going to know, I think it’s pretty clear your better off telling them yourself.   (That said, this story does not dwell on any trauma to Ms. Vaughn that resulted from the concealment and revelation.)

Beyond that, I find the sense of connection between Vaughn and Grigsby really striking.   For a time last year (or maybe the year before) I earnestly worked away at my own geneaology.   I turned up second and third cousins in a variety of places.   But I have to say that in the end, I realized I wasn’t all that interested in the project, largely because I didn’t feel terribly much connection with the distant relatives.

I don’t mean to suggest that my experience is the norm–I have no idea, really.   But it does seem to me that experiences here must vary and there is absolutely no chance that the NYT will run a front page story that says “Shapiro found her third cousins but didn’t really care about that.”   You wouldn’t even see a story that said “Vaughn found her third-cousins but didn’t find it very important.”  What I mean to suggest is that the impression created by media is necessarily skewed.    Inevitably the only stories that get media coverage will be those that match with one set of experiences.

Finally (for the moment, because I don’t want to go too long here) I find it really interesting that the genetic connection trumps race, which is often experienced as a fundamental difference in our society.   Vaughn is Black and Grigsby is White, but this matters less to the women than the fact of the genetic connection.   (The connection must be the result of some common forebear several generations back and as yet unidentified.)     There’s something really interesting (and perhaps hopeful) here.   I think we often think of race as something that is both fixed and genetically defined.   The truth is much more complicated.  Like so many other things race is at least in part socially constructed, such that a single ancestor can have descendants who are identify as different races.   Maybe a better understanding of our common heritages will help us get beyond some of the unproductive manifestations of race in the United States today.

You can certainly go read the explanation, but here it is in a nutshell.   A small number of women with healthy nuclear DNA carry defects in their mitochondrial DNA.  If the eggs from these women are used for reproduction there’s a chance that the offspring will have genetic disorders transmitted via the mitochondrial DNA.  (There’s a small number of those, but I gather they can be severe.)

It is possible to take the nucleus of an egg from one woman place it inside a hollowed-out egg from a different woman.   You can do this where the first woman has defective mitochondrial DNA and the second woman does not and you end up with an egg that has entirely healthy DNA.  Of course, it would also have DNA from two different women.   If it is then fertilized you could create an embryo (which may ultimately become a child) who has three genetic parents–the two women and the man.

The news now is that the HFEA (the UK regulator of ART) has concluded that more work needs to be done with the techniques used here before they can be approved for clinical use.   The concerns of the HFEA expressed here seem to have less to do with the ethical issues raised, which will not be addressed by more testing and experimentation, than with the safety issues.   Given the comments of the scientists involved, it seems to me that the point at which the techniques will be approved for clinical use is not so very far off.

Like ICSI (the subject of yesterday’s post), this technique gives people a new way to become genetic parents.   Indeed, that is really its sole value—women with defective mitochondrial DNA can, at this point, only become genetic parents with some risk to the child.  If and when this technique is approved, they will be able to become genetic parents without risk to the child (or more accurately, with only whatever minimal risks the HFEA decides are acceptable.)    Thus, these women will be able to become genetic parents, just as ICSI has allowed men with inadequate sperm or inadequate supplies of sperm to become genetic parents.

Now here there is an added wrinkle.   The women who use this technology will, by definition, be people who care a good deal about genetic relationships.  If they didn’t care, they could simply buy an egg.  (I suppose I am making an assumption here that this system will have an added cost, but I think this is a fair assumption.  You still need a third-party egg and you also need to harvest an egg from the original woman and then you need to do whatever laboratory procedures are involved.)

But remember that any child that results here will have a genetic link to the woman who provides the mitochondrial DNA.   If genetic linkage is important than this one should be important as well, and so that leaves people using this technology to figure out how to give meaning to this additional genetic link.

While that’s an interesting prospect, I am drawn to the question I raised yesterday:  This research is fueled by and dependent on people’s desires for a genetically related child.   If more people were more willing to accept a genetically unrelated child, the demand for this sort of technology would weaken.   If genetics were not seen as so important, the demand might actually collapse.

Would that be a bad thing?  It seems to me that lots of research relevant to ART holds a range of benefits.  So, for instance, the ability to understand the genetic origins of various disabilities has potentially very wide use.  But for the moment at least, I don’t see that broad potential for this research.

This leads me to some questions:   For those who place great value on genetic linkage, the research should be important as it allows people to achieve that great good–the genetically linked child.   Thus, I wonder if (philosophically speaking) those people do in fact support the research.    And for those who do not place great value on genetic linkage (and that includes me), shouldn’t we question the resources devoted to this sort of research?