Whose baby is it, anyway?
Figuring out who your parents are used to be a pretty simple proposition. They were the people who kissed your forehead when you headed out to school and signed you up for Girl Scouts and barked at you for leaving your bike in the driveway.
Now, forget it.
In this age of high-tech fertilization and conception, deciphering parentage can be a complex computation for which there is often no reliable formula. Is the parent the person who, knowingly or unknowingly, contributed his or her genetic material? The person who carried the fetus in her womb? The person who pours the Cheerios in the morning and reads “Good Night, Moon” at bedtime?
The case of Californian Susan Buchweitz points out the messy consequences of a 20th-century legal system grappling with 21st-century technology.
She was a 48-year-old interior decorator when she gave birth to a boy who grew from a donated egg fertilized by donated sperm. She had tried in her early 40s to have a child, according to news accounts, and after two years of counseling, decided time was running out. She chose the egg and sperm donors carefully through her doctor. She saw herself and her baby as a family with all that the concept implies: relatives, traditions, values, unbreakable bonds and unconditional love.
But when her son was 10 months old, she found out the wrong embryo had been implanted in her womb. It was one of several frozen embryos belonging to a married couple who had an appointment for implantation the same day as Buchweitz. Buchweitz’s baby, and the girl born to the married couple, were born 10 days apart.
When the husband of the married couple discovered he was the biological father of Buchweitz’s son — the wife used a donor egg — he sued for full custody.
Last month, a judge mediated a settlement in which the biological father, who had temporary visitation rights for almost two years, gets to share custody of Buchweitz’s son, who is now 3. Buchweitz, who did not return phone calls, must send her toddler to the man’s home several days a week.
Think about this.
Because this man’s sperm was accidentally implanted in a woman who is a complete stranger, he has the right under current law to step into her life and the life of her son. He can make decisions about how he will be raised and where he will sleep and what schools he will attend.
Here’s the kicker: Under California law, if the woman had been married at the time of implantation, her husband would have been the presumptive father, no matter what the DNA testing revealed, and the biological father would have no claim to the child.
These are the murky, unfamiliar waters that judges today have to navigate. Britain, the country that produced the first in vitro baby, has a Fertilization and Embryology Authority created by Parliament to oversee the many complicated questions that must be answered as technology hurtles forward. The United States has no counterpart.
In the meantime, a mother relinquishes her baby several days a week to a man she doesn’t know and, according to several people familiar with both parties, to whom she has almost nothing in common. I understand a man’s sense of connection and responsibility to a baby that carries his genes. I understand a mother’s desire to raise her child with stability and consistency, in one home, with one set of values.
We need laws as sophisticated and complex as the lives we live today, ones that recognize that families are defined by, and bound to each other, by much stronger stuff than double-helixes.
Joan Ryan is a columnist for the San Francisco Chronicle. Her e-mail is [email protected].