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.
I think these frozen embryos are just as much the property of the other couple as they would be if they were created with the sperm and egg of the couple. But the genetics are different. Now if the frozen embryo is mistakenly transferred into someone else, what happens? The pregnant woman is still unrelated to the embryo. The woman in the other couple is genetically related to the embryo. The man is not.
Imagine the couples don’t get along and don’t reach agreement. How does the court resolve parentage and why? Has the man purchased a better claim to parentage than the woman who was pregnant? This seems wrong to me. Surely the pregnancy counts for something?
Then imagine that the egg is what the other couple purchased. Now it seems to me you could say that the resulting child has a father (the sperm source from the couple that owned the embryo) and a mother (the woman who gave birth.) Alas, the parents are part of two entirely different and (I’ll assume) antagonistic families. It’s arguably not in the best interest of the child to recognize both people as parents, especially if the two couples don’t get along.
Then imagine that the other couple bought both sperm and egg. Again, their frozen embryo is mistakenly transferred to the another woman. Who are the parents of this child? For me, the claim of the couple that purchased egg and sperm ought not defeat the claim of the woman who was pregnant and gave birth.
And then run the same changes through considering single people at both ends of the operation. Suppose, for example, the embryo belongs to a single man who purchased an egg, used his own sperm and was, in time, planning to use a surrogate to bring the baby to term. If the embryo is mistakenly implanted into someone who did not intend to be a surrogate, then who are (or who is) the parent(s) of the resulting child?
It makes my head spin. What you need here is a set of principles that resolve all the permutations. I tend to give priority to the act of being pregnant.
I know many would give priority to the genetic relationship, though I would not. But then how do you fit in the people who purchased the genetic material? It’s one thing to say that such sale/purchase shouldn’t be allowed, but as it is permitted for now, the law needs to deal with this problem.
As something of an aside, I think there’s something wrong with describing the woman who did not start out to be a surrogate as a surrogate. I’m troubled by surrogacy generally, because of my view on pregnancy, noted above, and for other reasons as well, and perhaps this skews my view. (There’s extensive discussion of surrogacy way back in this blog, and I’ve tried to put that link around the middle of the discussion.) But I think you must agree to be a surrogate at the get go, not after you’re pregnant. You can certainly agree to continue the pregnancy and then turn the baby over to someone else, but to me, that doesn’t make you a surrogate.