Patricia C. Kuszler, MD JD
Associate Dean for Academic Administration
Charles I. Stone Professor of Law
University of Washington
Overview
 The Science of Parenthood
 Assisted Reproductive Technologies (ART)
 Genomics and Genetic Testing
 What do ART and Genetic testing offer to prospective
parents? To society?
 The Traditional Legal Construct of Parenthood
 Changing Family Norms in the wake of scientific
advances
 Redefining Legal Parenthood in Response to Social
Change
Assisted Reproductive Technologies
 Sperm Donation
 Sperm are donated, although the
service associated with the
donation may be compensated
 Donation may be anonymous
(sperm bank) or not anonymous
 Once donated, sperm banked
until use in:


Artificial Insemination
In-vitro Fertilization
 Design Capacity
 Sperm banks typically maintain a
“profile” of donor, including
physical characteristics, health
education, racial and ethnic
background
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Assisted Reproductive Technologies
 Egg Donation
 Like sperm, eggs are donated,
although the service is compensated
 Egg harvesting requires considerably
more service than sperm donation
 Like sperm, eggs are marketed with
respect to traits
 Once donated
Requires GIFT,
ZIFT or In-vitro
 Eggs do not store well long-term
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Assisted Reproductive Technologies
 Embryos
 Most commonly created in-vitro
Insemination may be enhanced using
ICSI
 Once created, can be frozen
 Can be tested for genetic disease,


PGD
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Assisted Reproductive Technologies
 Embryos
 May even be treated….
 Have utility outside of the reproductive context
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Assisted Reproductive Technologies
 In-vitro fertilization
 Has become the most common technique outpacing the
earlier GIFT and ZIFT procedures
Procedure
Live birth rate per embryo transfer cycle
IVF
31.0%
ICSI
28.6%
GIFT
24.5%
ZIFT
29.2%
 Success rate varies – 20%-30% for each try
 Expensive often >$25,000/attempt
+ charges for PGD – another several thousand $
 Used in cases of infertility; when couples seek preimplantation genetic testing; when a surrogate mother is
used…

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Prenatal Testing
 Ultrasound – began in the
1960s…
 Amniocentesis
 ↑ Maternal age
 Risk of genetic
chromosomal or
morphologic
abnormality
 Chorionic
Villus Sampling
-- may be done earlier,
but more risk
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Prenatal Testing
 Maternal Serum testing for alpha-fetoprotein (AFP)
 Metabolic indicator for neural tube disorders,
anencephaly, and Down syndrome
 Maternal Serum Fetal Cell Recovery – Non-invasive
prenatal diagnosis
 Allows for the retrieval of shed fetal cells which are then
referred for genetic testing –
 Full realm of genetic testing is possible
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What does ART and genomics offer
prospective parents?
 Opens the door to
parenthood
 For the infertile
 For single parents
 For non-traditional parents
 Opportunity for early
diagnosis of medical and
genetic problems – and
sometimes for early
treatment
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What does ART and genomics offer
prospective parents?
 Opportunity to avoid pregnancy which will result in
birth of baby with medical problems
 For some this allow them to sidestep abortion decision
 Opportunity to optimize traits of child
 Positive eugenics?
 Opportunity to prepare to care for a child with a
disorder
 Is knowledge power?
 Is aiming for perfection a just and ethical goal?
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What does ART and genomics offer
prospective parents?
 The Downside…
 Uncertainty and Confusion
 Attachment difficulty
 The ‘Tentative” Pregnancy
 Devaluation of disabled or less
than “perfect” kids
 Both within the family and
society
 High cost and debt – economic
crippling in quest for “better”
child
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What does ART and genomics offer
society?
 Opportunity to address and avoid disease and
disability
 Thus decreasing societal costs
 Help decrease the incidence of genetic diseases
 i.e. Tay-Sachs disease
 Further understanding
of how technology may
improve individual and
population health
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What does ART and genomics offer
society?
 The Downside…
 Potential revival of negative eugenics – devaluation
of the disabled or less “perfect”
 Increasing disparities and social injustice
 Dehumanizing the miracle of birth…
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ART, Genomics and Family Law
 Legal Confusion!
 Who are the Parents?
 Genetic parents: contributors of DNA

Sperm, Egg, and potentially cytoplasm of another Egg
 Gestational Mother – not necessarily genetically related
 Intended parents – at least 1, often 2, sometimes
more….can theoretically be 6 or more!
 Performing parents – who acts as parent and fulfills role
for the child?
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What is Legal Parenthood?
 Classically Legal Parenthood determined using the
Unitary Family standard
 Children born within a marriage have as their “legal”
parents the married couple
 Presumed genetic bond
 Michael H v. Gerald D., 91 U.S. 110 (1989)
 Validated the “Unitary Family” definition
 Typically this “Unitary Family” approach is also found
in civil codes around the world….
Genetics: the Holy Grail in Establishing
Parenthood?
 Should Genetic connection be the determinant of
parenthood?
 What about sperm donors who don’t wish to be legal
parents, but merely donated sperm? What about egg donor
who merely donated eggs?
 Sperm donor siblings? Donor sibling registry? Sperm
and egg donor family trees?
 Robert B. v. Susan B., 135 Cal. Rptr. 2d 685 (6th Dist. 2003)
 Single woman seeks to become mother using
anonymous sperm; inadvertantly given sperm of man
seeking become father with his wife; he asserts parental
rights over child born to single woman
Pregnancy and Parenthood: the
Gestational/Surrogate Mother
 Sometimes the surrogate mom is the
gestational mom, sometimes not…
 Women serve as gestational mothers to assist
infertile couples or prospective parents
 Fulfill dreams of parenthood for couples or non-
traditional families. unable to have child
 Celebrated case of Baby M., 537 A. 2d 1227
(N.J. 1988): surrogate mom is also genetic
mom and refuses to relinquish child after birth
 Surrogate contracts not recognized in many jurisdictions
 Concern of exploitation of women – baby factories
Intended Parenthood: Does intent matter?
 In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Cal. Ct.
App. 1998)
 Couple decide to have child using assisted reproductive
technologies (donor gametes, surrogate mother) but before child
is born, couple divorces. Husband of couple refuses to support
child. Neither egg donor nor gestational mom lay claim to the
child. Who are the legal parents with duty to support child?
 In re Nicholas H., 120 Cal. Rptr. 2d 146 (2002)
 Man functions as father to child his former live in girlfriend
leaves behind; years pass; biological parents completely abandon
child, but child is loved and cared for by this Man, who functions
as parent. Can he be recognized as a legal parent?
 In re Parentage of L.B. 155 Wn.2d 679
 Lesbian couple have child, with one providing egg and gestation,
and friend providing sperm; partner cares for the child
functioning as parent. After several years, lesbian couple
separate. Does the partner have any parental rights?
Parenthood in the Context of Modern
Family Structures
 Single parents
 Gay/Lesbian Parents
 “Elderly”
parents
 Posthumous parents
 Prisoners
 “Saviour” Children
Summary
 Science is taking parenthood further away from the
“unitary” family model towards a “collaborative
reproduction” model
 Society is creating an every increasing universe of
potential parents and models of parenthood, including an
ever increasing number of single parents and families not
adhering to unitary family approach
 Genetics matters, but legal trend is towards recognition of
intent and demonstrated performance as a parent equally
pivotal in determining parenthood