The world recently learned that a three-person baby had been born in Mexico. The controversial procedure is a way that a couple can have a healthy baby in spite of a genetic defect carried by one of the parents. The process involves using the DNA from both parents plus some DNA from a third party donor.
Although the procedure was developed by a U.S. doctor, it is not legal in the U.S. Assuming that the FDA granted approval to the procedure, there would still be some legal questions to be dealt with. Deborah H. Wald of The Wald Law Group explains the problems and talks about solutions in this report.
Wald says that the immediate problem raised by this procedure is “figuring out who the parents are.” In the years since the appearance of egg donation and surrogate parenthood, states have all made (or not made) their own laws regarding surrogacy. In many states (not including California, where Wald practices law), issue defaults to genetics in making any determination of parenthood for a child. In states like this, it could be complicated when three people have all provided DNA to a child.
California law may provide a solution for other states, should the three-person baby procedure become accepted in the U.S. As Wald explains, California “now looks to documented intentions as the gold standard . . . for figuring out who parents are in cases of assisted reproduction.” Courts look to written documents to determine the intentions of the parties in these situations. So in a situation like the one in Mexico, where there are physicians involved in the conception, the medical personnel and the clinic involved would need to receive clear paperwork in advance of the procedure.
Another issue is ownership of the embryo. Wald points out that, again, state laws will set the rules. Typically, she says, everyone who contributes DNA to the production of an embryo would have some say in what happens to the embryo. So it is important that everyone involved is fully informed before going into the process and that everyone’s intentions are clearly documented. “Otherwise, I think this is going to turn into an enormous mess.”
What about someone who has a change of heart later? Wald says that, if everyone involved has had independent legal counsel and has made an informed decision before signing the surrogacy contract, then the contract is enforceable. The law’s concern is for children. “It’s more important to children that there be clarity who their parents are than that they have a legal connection” to the suppliers of their genetic material.
Deborah H. Wald is the founder and managing partner at The Wald Law Group in San Francisco and a Certified Family Law Specialist in California. Her work has evolved over the past 27 years from a part-time home-based family formation law practice to a multi-disciplinary full service family law firm. Ms. Wald's goal is to ensure that all individuals, families and children coming to The Wald Law Group receive the highest quality legal protections available. The Sequence Media Financial Network is a featured network of Sequence Media Group.