I just sat down to write this entry, inspired by this morning’s Today Show and lo, I found I had already used my title. Six months ago I wrote about another wrong embryo case, but I guess I’d forgotten. Just goes to show that, as I said in that earlier post, accidents will happen.
Anyway, here is the story from this AM: Carolyn and Sean Savage had used IVF to conceive their third child. They had left-over embryos which were frozen. They decided they wanted to try to have a fourth child and so went to have the embryos thawed and transferred.
A pregnancy resulted. But it turned out the clinic had used the wrong embryos–embryos that had been prepared and stored for some other couple. Somehow this came to light quite quickly (though obviously not quickly enough) and so the news of the error arrived along with the news that Carolyn was pregnant.
Clearly the Savages had a limited range of options at that point, none of which were ideal. As recounted on this mornings TV show, though, they started out with some legal advice I’m inclined to doubt–they were told that they couldn’t keep the child.
I’m not at all persuaded that would be true. (They live in Ohio, but I’m not sure what Ohio law is.) I think the only way a woman can give birth and not be considered a legal parent is if there is an enforceable surrogacy agreement. Some states permit those and some do not, but even in the state’s that do permit them, you need to start with an actual agreement. Obviously there was no such agreement here. So my instinct is to say that the law would have recognized Carolyn Savage as the mother of the child when it was born.
Guessing aside, this is an interesting problem to think about. It seems to me the surrogate’s agreement is an indispensible feature of surrogacy. Absent that agreement, a woman in Carolyn Savage’s position ought to be a mother. (I’m not reopening the whole surrogacy question at the moment, but you can look back on the blog for discussion about that. Perhaps she ought to be the mother even if there is an agreement.) Is there any really good argument that she should not be the mother?
It’s clear that had she wanted to, Carolyn Savage could have terminated the pregnancy via abortion. But the Savages chose not to do that. They elected to continue the pregnancy and they plan to surrender the child to the couple whose embryo was mistakenly transferred. In other words, now both couples are parties to a surrogacy arrangement. (It’s really rather an altruistic surrogacy arrangment, for those who are keeping track. certainly the couple who will receive the child are not paying the Savages.)
If you think about this sort of mistake, which I assume is bound to happen once in a while, you can see all sorts of ways it could play out. Both couples could want the resulting child. Neither couple could want it. (It’s fortunate that the couple whose embryo was transferred was willing to accept another child at this time.) Or either one, but not the other, could want it. Clearly all of this challenges us to consider who are the parents of the child that results from this sort of accident and, equally important, why you give that answer.
There’s another question lurking here. At the tail end of the TV clip, there is a suggestion that there might be some sort of litigation. Surely the Savages have some sort of claim against the clinic that mixed up the embryos. So, too, would the other family, I think. But for each of them, what is the measure of damages? Could you measure Carolyn Savage’s damages by looking to what a surrogate would have earned? Is that adequate, assuming she would never had agreed to a surrogate? And the other couple, what did they lose here? The opportunity to experience pregnancy with this child–what’s that worth? How can we figure it out?
There’s a last little twist I wanted to note, too. Carolyn and Sean Savage still have remaining frozen embryos. But Carolyn Savage can no longer carry the pregnancy. So they plan to use these remaining embryos with a surrogate. I cannot help but wonder whether her experience as an unintended surrogate will shape how she approaches the surrogate they have now retained.