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Abstract:
In December 1998 a woman gave birth to twins, one of whom was European-American and one of whom was African-American, as a result of an embryo mix-up that occurred at an infertility clinic where she was receiving treatments. The genetic progenitors of the mistakenly implanted embryo challenged the birth mother's rights to one of the twins. They won their New York state court lawsuit, ultimately preventing the birth mother from even having visitation with her son. This essay examines the impact of assisted reproductive technologies (ARTs) mistakes on the legal analysis of parenthood (in particular maternity), offers a systematic critique of the court's reasoning in the case, makes clear the flaws in the analogies the court uses to reach its conclusion, argues that more courts are defaulting to a genetic essentialism to answer questions of parenthood and ARTs, challenges the legal system to reject a genetics-based definition of legal parenthood because of the sex (and race) biases reproduced through that approach, and exposes the buried assumptions about race and intimacy that led to the court's unreasonable decision. One key argument of this essay highlights the ways that a simplistic genetics-based analysis of parenthood creates a sex-bias by valuing all the biological contributions that a male makes to reproduction (gametes), but valuing only a small part of the biological contributions that a female makes (gestation, labor and birth). Another argument focuses on how the court uses a race-matching approach to parenthood that erroneously reduces race to a biological concept and that relies on deep cultural biases against interracial relationships. Mistakes with ARTs are inevitable. Our legal system must scrupulously examine its fundamental premises about parenthood, genes, race and sex in order to reach just decisions when ART mistakes occur.

race, sex, bioethics, parents, genes, biology, mother, maternity, assisted reproductive technologies, family, transracial adoption, reproduction, pregnancy, gestation

Abstract:
Any human endeavor is prey to human error. The consequences of human error in the area of assisted reproductive technologies are magnified by our playing in the field of creation of new human lives and lifelong relationships. Stories of assisted reproductive technology (ART) mistakes continue to fascinate the media and popular culture, pain their multiple victims, and haunt the nightmares of ART participants, past, present, and future. Though there are many kinds of mistakes that can arise in these complex processes, this article focuses on mistakes or mix-ups involving the accidental use of incorrect gametes (sperm, ova, and embryos) during in vitro fertilization (IVF) procedures. After examining the reported mistakes and the ways that courts and statutes have resolved issues of ART mix-ups, this article suggests an alternative approach that is labor-based and child-centered. This approach has a particular sensitivity to women's gestational contributions to reproduction.

Bioethics, family, assisted reproductive technologies, IVF, ARTs, gestational mother, genetic mother, genetics, race, gender, sex, feminism, women, feminism, genes, mother, pregnancy, mix-up, father, child-centered, child, infant, baby, embryo, parents, mistake, essentialism, labor, same-sex,