Having the possibility of being fathers and mothers, waiting for the arrival of a child and for it to be born healthy is one of the most momentous events in people’s lives. In many cases, in vitro fertilization is established as a way that can contribute to the conception of a boy or girl when problems arise and assisted reproduction is required. Commonly, eggs are obtained and fertilized in a laboratory; the embryo is then implanted in the uterus.
The procedure happens without major obstacles and happiness overflows; However, what happens when, by human error, a mother carries a baby that corresponds to another couple?
This week the news broke of a couple from San Isidro who had their third child through this technique. Everything was going well, but when they were about to leave the clinic after the birth, the father observed that the baby’s blood group did not correspond to his or his partner’s.
Under this premise, the suspicion of both pointed to the fact that the embryo corresponded to another couple. After the complaint, the San Isidro justice began an investigation to determine the existence of crimes such as identity suppression, fraud and injuries. The sanatorium was raided (which, when reviewing the action protocol, did not reveal where the fault was) and the people to whom the baby might correspond were contacted. However, the criminal case was closed: for justice it was an error without intent, although there could be a claim for damages. They also inquired about the final destination of the embryo provided by them and they were notified that it should previously have been discarded. Luckily, because the confusion could have been greater if his embryo, simultaneously, had been gestated by another family.
Although unprecedented in Argentina, this type of phenomenon occurs from time to time in the world. In fact, if the parents had not warned in time, they may never have found out about the situation. Ignacio Maglio, lawyer and specialist in bioethics, consulted by Página 12, comments: “The truth is that they are infrequent cases but, although they are often not known, they do exist. Each case is very particular and is solved in a specific way. In addition to the damages caused to this family, the so-called biological couple could claim a maternity/paternity option for the wrong embryo. Surely there will be some more demand. Even if it is an involuntary error, that does not exempt the institution in charge from responsibility”.
The complexity of this case, like all those that fall within the framework of bioethics, lies in the multiplicity of edges and approaches. From a biological point of view, the CONICET expert Alberto Kornblihtt points out that “it is not uncommon for a woman to harbor an embryo that does not correspond to her ovum or to the sperm of her partner, but it is always done with consent . In this case, it was not consent but a clinical error, therefore it does not have much reflection from the biological point of view”. Then, the referent completes his reflection: “Beyond that, I understand the surprise of the parents, but personally I have always established that true maternity or paternity is that of the affections and nurturing that is given to newborn babies and to the kid. Ultimately, if they are prepared to love the baby and protect it as if it were her biological child, the most important thing is socio-affective parenting. Kornblihtt distrusts genetic determinism, the one that states that the “true children” are those who carry the genes of their parents. Specifically, affectivity is what counts.
Legal knots and philosophical crosses are brewing around the event. Without going so far: who does the child belong to? To the family that gestated it, or to those who provided the genetic material? Is genetic or socio-affective belonging stronger?
Controversies, vulnerabilities and competing rights
“One of the issues that the law provides is to create certain registries that currently do not exist. Therefore, it would be necessary to comply with some aspects that would allow us to be completely certain that this type of event will not occur. There is a lack of controls, stricter evaluations, there is very little checking regarding when, how and for whom the genetic material is used”, says Eleonora Lamm, PhD in Law from the University of Barcelona and an expert in the area, who refers, for example , the Medically Assisted Reproduction Law and its inadequate application.
After his diagnosis, Lamm helps to propose a different lens through which to examine the conflict. “On the one hand, I understand that you want to investigate the genetic origin of the person, but in reality it is quite complicated because, according to civil and commercial law, the person who has the right to know who his parents are is the child and he will do so, if he wants it, when he grows up. Maternity will be given by childbirth, by the person who has given birth to the baby, and paternity by the creative will and by the socio-affective bond that is generated. In filiatory terms, the filiation corresponds to them”.
The couple could also sue for damages because they were given a different embryo, at the same time that they suffered malpractice because at no time were they informed of the real state of their original embryo. “In this case, the genetic material is from an egg donor, while who has contributed the genetic material that corresponds to the semen is unknown. Therefore, the question that must be asked is whether we should find out who the contributor was, ”insists Lamm. And he completes: “You have to keep in mind that donors of genetic material often don’t care where it goes, they go and donate for a reason. The man, for his part, does not know with what genetic material he was mixed: perhaps he contributed to be used in the body of his partner and by mistake ended up contributing in the body of another woman ”.
However, aspects related to the protection of data and the privacy of people come into play every time they provide their genetic material in fertility clinics. In fact, in order to know who the genetic material of the baby corresponds to, data from many people who will not be willing would have to be evaluated. “A fundamental question is to ask how far the genetics can weigh, in such a way that it leads the corresponding authorities to carry out a search of this type”, emphasizes the specialist. Open the possibility of searching, present the claim option and the controversy emerges. In short: to what extent does genetics have preponderance if other rights such as privacy are at stake?
Background: more questions than answers
At the end of 2019, a similar case became known in the United States. A California couple turned to a fertility clinic hoping to become parents and after their baby was born they realized that, surprisingly, it did not look like anyone else. In fact, she had such different physical features that they were striking. When in doubt, they decided to take a DNA test and confirmed their assumptions: the gestated child was not their son. However, despite the bad taste, the story ended in a happy way: they managed to locate the couple who had had their son and exchanged them. In parallel, the resolution did not soften the anger: the couple sued the California Center for Reproductive Health and In VitroTech Labs, the embryology laboratory in charge.
Ten years earlier, in 2009, an artificially inseminated Ohio woman discovered that the embryo did not belong to her. From the clinic, she was told of her mistake when she was two months pregnant and it made the news. On this occasion, she decided to preserve the pregnancy and then deliver the baby to her biological parents.
The questions are also parked in a row in these cases and serve to illuminate the emotions and the situation that the Argentine couple could be going through. How do you handle such a situation? How will parents recover from an experience like this? What about the mental health of the pregnant woman and her partner? The anxiety and joy that turns into anguish and desolation.
