Switched at the Fertility Clinic--Determining Maternal Rights When a Child is Born from Stolen or Misdelivered Genetic Material
Missouri Law Review, Vol. 64, p. 517, 1999
Posted: 10 Jan 2000
Modern reproductive technology has been a blessing for many couples unable to conceive naturally. Through procedures such as in vitro fertilization, physicians are able to harvest eggs from the mother, fertilize them outside the womb, and freeze them for later implantation. A scandal at a California fertility clinic, however, illustrated the dangers of this process--namely, the possibility that an egg or embryo produced by one woman might be improperly implanted in the uterus of another, resulting in a legal battle to determine parental rights over the child.
This article reviews the legal community's response to issues raised by reproductive technology in general and suggests how the law might be adapted to the special case of stolen or misdelivered genetic material. The article finds that traditional parentage laws yield no easy answers because they were crafted in simpler times and cling to the theory that a child can have only one legal mother. The article suggests that a more progressive solution is needed when genetic material is shared without the mother's consent. The article proposes that if both mothers demonstrate an intent to parent the child, the courts should treat them both as legal parents and resolve their competing claims as a custody issue using a modified best interests analysis.
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