The Wrong Embryo: Variations on a Theme

I want to continue the wrong-embryo thread a bit longer, but before I do I want to make it clear that I am now fully in the realm of the hypothetical.   The discussion here takes off from the earlier posts, but I’m now changing facts freely just to make myself good questions. 

In the real world, the Carolyn Savage ended up pregnant after an embryo that belonged to someone else was transferred into her uterus.   Now we’ve assumed that the embryo was actually created with the other couples sperm and egg.  But suppose that is not the case.   Suppose the other couple had purchased one of the elements (let’s start with sperm) and then used it to create the embryos that were frozen. 

Seeking Birth Parents-Does Gender Matter?

As is so often the case, yesterday’s Style section of the NYT included a fine little essayin the Modern Love column.   It’s by Kerry Herlihy.   

Herlihy is adopted.   In the essay she considers her relationship with the woman who gave birth to her.   They made contact ten years ago but did not forge an ongoing relationship.   In the essay Herlihy chronicles her struggle over whether to use new technology to re-contact her birth mother.  It’s worth a read.   There’s just one relatively small point I wanted to comment on.  

It’s clear reading the essay that Herlihy’s hopes and expectations with regard to the woman who gave birth are complicated and substantial.   I suppose this is not necessarily remarkable–I’ve read frequently of the quest of an adopted child for the person typically called a “birth parent.”  

But Herlihy’s quest is so clearly focused on the woman who gave birth to her rather than the man who participated in her conception.  Indeed, he is granted only a brief and passing mention in the essay.    

For me this raises a gender question I’ve frequently wondered about.   Is it more important to adopted children to locate birth mothers than birth fathers?  Is the decision of a woman to give up a child for adoption generally different from the decision of a man?  

There’s an obvious reason why this might be so–the woman who gives birth has been pregnant for nine months or so.   The man whose genetic material created the child has not been.  He may have been involved with the process of pregnancy, but he need not be.  

So this really just comes back to a central question in my consideration of  parenthood–are men and women similarly situated?  Does pregnancy matter?   It seems at least in this case that it does.

The Implications of the Oregon Lesbian Mother Decision

Last week I posted  a couple of times about a recent Oregon case that opens some new avenues for lesbian mothers seeking legal recognition of their parental status.   While you might wish to go back and look at those posts, the idea, in a nutshell, is this:   If two women agree to engage in assisted insemination with the idea that they will raise a child together, then when they do that and the child is born, they are both legal parents of that child. 

There are two different ways in which you could reach this result.  One is that employed by the Oregon court:  A heterosexual married couple would be entitled to this treatment.  There is no basis for treating an unmarried lesbian couple differently in this regard, and therefore the lesbian couple is entitled to the same legal recognition. 

The thing about this rationale is that it starts from an already existing law that treats a heterosexual couple in a particular way.   That’s all well and good–it is really a fine way for a court to support it’s result.   But I want to consider the second way to justify the result, which is to say that this is the way the law should be for all people, be they married or unmarried, heterosexual or not. 

The Nature of Gender

Part of the reason I invested the time in writing yesterday’s post, which was rather less connected to my topic than might be usual, was to set up today’s post.   And now I find I can also tie it to the Modern Love column in today’s New York Times.   It’s a lovely column by Jennifer Finney Boylan about her experience of being Maddy.  (Or is it being a Maddy?)

Boylan is transgendered.  She began as her children’s father but, during the course of their childhood, transitioned to female.   It’s her older son who christened her “Maddy” when it became clear to him that continuing to call her “daddy” was going to be absurd.

Part of what Boylan writes about, of course, is gender.  What I want to think about here is gender and parenting.

That’s hardly a new topic for me.     It’s also a topic of particular concern for lesbian mothers and gay fathers and their advocates, as well as for single parents.  That’s because lesbian, gay and single parents are subject to the criticism that their kids won’t/don’t have a mother and a father.  

Gay Fathers/Lesbian Mothers, III

I’m not sure where or how far I want to take this thread for now.   The last couple of posts seem unsatisfying to me–they aren’t clear enough and they lack direction.  Perhaps all I am ready to do at this moment is not that there are both commonalities and differences between lesbian mothers and gay fathers.

I’ve a bunch of other topics queued up for now anyway, so let me just add one more thought here before I move off for now.  This is really the thought that triggered me to write about this topic now, so I might as well at least flag it.

A few posts back you’ll find an entry about some good news from New York state.  It’s a note about a case in which one woman donated an egg which was then combined with donor sperm. The resulting embryo was then transferred to the other woman who brought the pregnancy to term and gave birth.  As is discussed in that post, under the relevant law (there New York law) the second woman is a mother by virtue of having given birth.  The first women has a number of theories under which she might claim motherhood, but in the case is allowed to adopt her the child (a second parent adoption) in order to ensure portable parental rights.

What the women did here is a fairly elaborate procedure, and it bears some resemblance to several different forms of ART discussed.   So, for example, you could look at the first woman as an egg donor and/or you could look at the second woman as a gestational surrogate (a woman pregnant with and giving birth to a child she is not genetically related to).   But that’s not what the women involved intend to be, for neither egg donors nor gestational surrogates generally intend to be mothers.    (Indeed, there’s a well known CA case, KM v. EG, where the lower courts treated the first woman as an egg donor who therefore had no parental rights.  This result was reversed on appeal.)

Pregnant Men and Gendered Parenthood

Some long time ago now, I wrote about how pregnancy was an activity that was uniquely female.   Of course, it wasn’t very long after that (honestly, I think it was but a day) that the first of the new stories about the transgender pregnant man appeared.   Though I took note, I didn’t really explore it fully nor did I follow the story.  (I think he is pregnant now for the second time.)

Now comes a second story about another pregnant transgender man, this one in Spain, and this one pregnant with twins.   At the very least I feel obliged to review my earlier and unqualified statement noted above–the one about pregnancy being uniquely female.   After all, Ruben Coronado,  the man pregnant in Spain right now, will be legally male when he gives birth.

On one level, it’s becoming clear I’d better back off the totally-unqualified formulation of the statement.   Over time, surely there will be more men like Ruben Coronado and Thomas Beatty.   There’s no need for me to insist on the unqualifed assertion, really.  So instead I’ll say instead that pregnancy is an almost uniquely female experience, or a virtually uniquely female experience, or some such qualified formulation.   

The Wrong Embryo

No matter how careful they are, people make mistakes.   And mistakes create situations that no one ever intended, sometimes that no one ever imagined .    One thing this means is that you can learn a great deal by examining what happens when mistakes are made.

There’s a law professor whose written about this and her work is very thought-provoking.   Her name is Leslie Bender and you can find her work at her author page at SSRN (That’s one of those sites you must register for, although registration is free.   You can find my published work there, too.)   It’s worth your time.

Anyway, it is with her work in mind that I approach this next story.    There’s a longer account of the same incident here, one that raises some good points but also omits some details and is frustratingly sloppy in part.

A woman in Japan was undergoing IVF.  Embryos were created using her eggs and were then to be transferred into her uterus.   (One thing I wonder here is where the sperm came from, but let that go for now.)  Three embryos were transferred, two of which were ones created using her eggs.  By mistake, the clinic transferred a third embryo, one created with an egg of another woman who was also undergoing IVF.  The embryos were transferred on September 18 and September 20.

By October 7 it was clear that the woman was pregnant and somehow, around October 16 the doctor began to suspect that growing embryo was the one that had not been created with her eggs.  (I’m weak on the science, but I’d really like to know what would make the doctor suspect this.)   The thing is, there was apparently no way of being certain about this without doing amniocentesis, which could not be done for some time.  

Regulating Reproduction, Artificial or Otherwise?

I want to pick up on yesterday’s thought, but also try to open up the field of consideration.     Part of the point of yesterday’s post was that it seems that you can indulge yourself in whatever reproductive technology you care to if you have the money.

This is true in two senses.   One is that if you have the money, you can afford to purchase whatever materials and services you might want and, given the robust and unregulated US ART market, that practically means you can buy anything short of an actual living child.  (Note that while you technically cannot buy pre-embryos, you can buy all the constituent parts and the services to create them, so it’s pretty much a technical bar, I think.)  Indeed, given commercial surrogacy, I’m sure there are some who would say that you can indeed purchase a child, so long as you go about it the right way.

The second is that if you have money it is far more likely that your choices will be deemed private, and hence, your business only and hence, socially acceptable.   A huge brood of children is fine if the public doesn’t have to pay for them.   People may look at you like your are slightly crazy, but it’s still your choice.   (The recent NYT article about large families essentially walks this line.)

The Unregulated Industry of ART

It’s the octuplets again, of course.   It’s been a bit since I’ve written about them, but the story carries on (and on and on.)

A good deal of the recent discussion has focused on Suleman’s ability to support the children.    To many it seems that it would be fine to have octuplets or fourteen children under the age of eight if you could pay for them yourself.   That’s a question worth returning to, and I think in the end it will tie in here.

But I want to start with a second theme that has been quite prominent recently, including a front page story in today’s New York Times.    The octuplets have brought sudden scrutiny to the largely unregulated fertility industry in the United States.    Rather unsurprisingly, in the absence of regulation, a vigorous and competitive market for fertility services have developed.        

News in Brief: Is there an “anti-same-sex parenting” movement?

I’ve blogged in the past about various attempts, via legislation or initiative process, to prevent lesbians and gay men, either singly or in pairs, from becoming parents.   I wanted to do add a brief thought on that topic.

First  I really probably should more specifically say this is about efforts to prevent lesbians and gay men from becoming adoptive/foster parents.   A lesbian who becomes pregnant and gives birth will be a mother (unless she happens to be in a surrogate in  a state that does not recognize surrogates as mothers, I suppose).  I’m not aware of any efforts to declare her to be not a mother simply because she is a lesbian.

Similarly, where fatherhood is determined by genetic linkage, a gay man whose genetic material is used to create a child will be a father, just as any other man would be.   This is what is sometimes meant by “natural father.”