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Wrongful genetic connection: neither blood of my blood, nor flesh of my flesh

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Abstract

The use of reproductive techniques and the eventual reproductive negligence from the provider of reproductive services gave rise to situations in which the intended parents are deprived of raising a child genetically connected to them. Courts have been dealing with cases of those for years, but have systemically denied claimants (the prospective parents) compensation, failing to recognise as damage the loss of genetic connection. In 2017, for the first time, the Singapore High Court provided compensation for that damage, labelled “loss of genetic affinity” (ACB v Thomson Medical Pte Ltd and Others [2017] SGCA 20). This paper will argue that the damage in question is the loss of genetic connection (wrongful genetic connection) and results from a violation of reproductive rights (and eventually also the right to found a family) because a key element of reproductive rights is to have children with whom we keep a genetic bond and raise them. The paper will explain why the arguments classically argued against such compensation are unfounded and it will argue for a compensation covering both patrimonial and non-patrimonial damages.

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Notes

  1. The paper uses the term “intended parents” to refer to people expecting to be the biological parents of a child whom they are expecting to raise and also to the ones that, thought not expecting a genetic bond with the child (they did not provide genetic material), have a relationship with the genetic parents and consequently were expecting to be the child’s legal parents and raise it.

  2. Apart from these scenarios there are also cases in which children have genetic ties with two families. For instance; child A, raised by family A, is the son of woman A and man B; whereas child B, raised by family B, is the son of man A and woman B.

  3. Andrews v. Keltz, 838 N.Y.S.2d 363, 367 (Sup. Ct. 2007).

  4. ACB v Thomson Medical Pte Ltd and Others [2017] SGCA 20.

  5. There might also have been cases in which the husband brought into the house a child born out of wedlock with a mistress, but that would not have really amounted to the loss of a genetic connection between the woman and child.

  6. Perry-Rogers v. Fasano, 715 NYS 2d 19 (NY App. Div., 2000).

  7. Perry-Rogers, 723 N.Y.S.2d at 29–30.

  8. Leeds Teaching Hospitals NHS Trust v Mr A and others [2003] EWHC 259 (QB).

  9. Andrews v Keltz 15 Misc 3d 940 (2007).

  10. Dov Fox stated that the pretension could have reached more success in court had the plaintiffs argued “racial or ethnic mismatch” (Fox 2017).

  11. https://www.bbc.com/news/world-asia-pacific-14181316.

  12. A concept proposed by the New York Supreme Court in Andrews v Keltz 2007 NY Slip Op 27139 [15 Misc 3d 940].

  13. Norton (1999) calls this the “affinity interests”.

  14. Scientists do know that the cause-effect relationship in genetics is far more complicated and that parents and children do not always look alike and do not always like the same things or are good at the same activities. But lay wisdom continues to insist on this relation.

  15. The reason why the paper stresses the genetic bond is not because of a supposed higher importance over other types of bonds, but merely because the topic of the paper is precisely the loss of genetic connection and the consequences therein derived.

  16. The desire to share with offspring a genetic connection has also led to claims for reproductive cloning (Lotz 2008, a procedure the author designates as social cloning).

  17. Re Baby M, 537 A.2d 1227 (N.J. 1988).

  18. For instance, “In our judgment, the Appellant’s interest in maintaining the integrity of her reproductive plans in this very specific sense—where she has made a conscious decision to have a child with her husband to maintain an intergenerational genetic link and to preserve ‘affinity’ - is one which the law should recognise and protect? (ACB v Thomson Medical Pte Ltd and Others [135]).

  19. ACB v Thomson Medical Pte Ltd and Others [130].

  20. Genetic lineage is particularly important for orthodox Jews. As referred by Norton (Norton 1999), the fear of genetic switches led a fertility clinic in Brooklyn to keep eggs and sperm locked in a special incubator to which only the rabbi and his assistant had the key, a process called “kosher certification”, which is very common in Israel.

  21. Also, rejecting these arguments, see Dov Fox (2018). As the author explains, “Affording relief for the consequent adversities of navigating public life risks sustaining mono-racial family whiteness as a socially advantaged norm. The not-so-distant history of American eugenics informs the social meaning of confounded offspring race” (p. 107).

  22. ACB v Thomson Medical Pte Ltd and Others, 982 [130].

  23. Andrews v. Keltz, 838 N.Y.S.2d 363, 365 (Sup. Ct. 2007), quoting Weintraub v Brown (98 A.D.2d 339, 348–349 [1983]).

  24. The cumulative existence of these two dimensions is necessary to claim a right to reproduce. Therefore, gamete donors do not exercise a right to reproduce because even though they reproduce in biological terms the intention to establish a legal bond with the child is absent (even if that intention exists, it is banned by law to gamete donors). On the other hand, people that adopt, or have children using the biological material of someone else, are nor exercising a right to reproduce, because in these cases legal parenthood is not grounded on a genetic bond. Instead, they are exercising the right to create a family. In detail on this matter see Raposo (2014).

  25. In his writings, Robertson has systematically grounded the right to reproduce on the biological contribution (Robertson, 1996). See also Aguilar, 2000.

  26. Cf. Stanley v. Illinois, 405 U.S. 645 (1972), emphasising the relevance of natural parenthood to awarding children’s legal custody (even though the Supreme Court did not refer the protection of parental rights to reproductive rights, but to the protection of the family as a unit).

  27. See also the words of the Court in the Perry-Rogers case: “that the child that they wanted so desperately… might be born to someone else and that they might never know his or her fate”.

  28. See, for instance, Article 168 of the Portuguese Criminal Code and Article 466 of the Mexican General Health Law (Ley General de Salud).

  29. Article 26/1 of the Portuguese Constitution.

  30. Article 16 of the Universal Declaration of Human Rights and Article 12 of the European Convention of Human Rights.

  31. In X, Y & Z v. the United Kingdom (case no. 21830/93, from 22 April 1997), the European Court of Human Rights held that the relationship between a female-to-male transsexual and the child born by artificial insemination by donor (AID) amounted to family life, thus recognising that there was a family life even in the absence of a genetic link.

  32. https://nl.newsbank.com/nl-search/we/Archives?p_product=KC&p_theme=kc&p_action=search&p_maxdocs=200&p_topdoc=1&p_text_direct-0=0EAF4234676AD331&p_field_direct-0=document_id&p_perpage=10&p_sort=YMD_date:D&s_trackval=GooglePM.

  33. http://www.nbcnews.com/id/45106126/ns/world_news-europe/t/russia-families-girls-switched-birth-get-each/#.XRRS1pMzbyU.

  34. I borrowed the term “genetic essentialism” from Hendricks (2016), which defines it as the “increasing commitment—again, in both law and culture—to genes as the essence, the sine qua non, the definitional element of parenthood” (p. 109).

  35. Alternatively, when a claimant’s child is delivered to another family, monetary damages should cover the cost of the reproductive treatment (see also Kleinfeld, 2005, p. 243). Such treatments are accompanied by a huge expense to achieve the desired biological child, and in the end the parents are deprived of that child.

  36. ACB v Thomson Medical Pte Ltd and Others [106].

  37. ACB v Thomson Medical Pte Ltd and Others [106].

  38. ACB v Thomson Medical Pte Ltd and Others [149].

  39. ACB v Thomson Medical Pte Ltd and Others [150].

  40. However, if only one of them claims damages in court, and even if the loss affects both, only the claimant’s loss will be considered.

  41. In other cases, parents are prevented for using reproductive technics one more time to try to have a biologically related child due to financial constraints. The use of these techniques might be quite expensive and parents might lack the money for another treatment (Norton 1999).

  42. https://www.nytimes.com/1991/08/01/nyregion/sperm-mix-up-lawsuit-is-settled.html.

  43. See https://support.ancestry.com/s/article/Unexpected-Ethnicity-Results.

  44. The relevance of similar features between parents and children is at the core of Norton’s thesis of “genetic affinity” as described supra.

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Funding

This work was supported by the University of Macau, under the Multi-Year Research Grant MYRG2015-00008-FLL.

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  1. Faculty of Law, University of Macau, Room 2043, E32, Avenida da Universidade, Taipa, Macao, China

    Vera Lúcia Raposo

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Raposo, V.L. Wrongful genetic connection: neither blood of my blood, nor flesh of my flesh. Med Health Care and Philos 23, 309–319 (2020). https://doi.org/10.1007/s11019-019-09927-1

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