Whose Embryo Is It, Anyway?
By Deborah Allen, Valerie Hans and Barbara Duch, University of DelawareRevised by Steve Fifield, University of Delaware
Stage 1: Scrambled Eggs
On an April day in 1998, Deborah Perry-Rogers, 33, who lived with her husband in New Jersey, waited in the Manhattan clinic of IVF New York to have several three day-old embryos transferred to her uterus by Dr. Lillian Nash. The embryos were produced in the clinic by mixing Deborah’s eggs with her husband’s sperm, a procedure called in vitro fertilization. Donna Fasano, 37, from Staten Island, was also visiting the clinic to have Dr. Nash implant embryos produced from her eggs and her husband’s sperm. In the waiting room, Robert Rogers and Richard Fasano made small talk, while down the hall the business of making babies proceeded without them.
A month later, Donna Fasano was pregnant with twins, but Deborah Perry-Rogers was not pregnant. Soon after the couples learned of these results, Dr. Nash also informed them of a serious mistake -- three of the Rogers' embryos were placed in Donna Fasano along with several of the Fasano’s embryos. Dr. Nash did not reveal to the Rogerses the identity of the woman who received their embryos, nor to the Fasanos the identity of the genetic parents of the mistakenly transferred embryos.
Preliminary issues for group discussion:
1. What are the implications of the mistaken embryo transfer for the Fasanos? For the Rogerses?
2. At this point, can the Fasanos find out if they are the genetic parents of the two fetuses? If so, how?
Stage 2: Whose Baby Is It?
Although Dr. Nash did not identify the couples to one another, she did tell the Fasanos, who are white, that they received embryos from “a woman of color” (New York Daily News, March 3, 2000, pg. 14).
The Fasanos had DNA testing done on the developing fetuses. The tests indicated that the Fasanos were the genetic parents of one of the fetuses, but not the other.
Meanwhile, the Rogerses hired a private investigator to find the woman who mistakenly received their embryos.
In December 1998, Donna Fasano gave birth to two boys: Joseph, who was black, and Vincent, who was white. Several weeks later the Rogerses learned the identity of the Fasanos when their private investigator spotted a man, who fit the description of the person Mr. Rogers met in the clinic waiting room, carrying diapers into a Staten Island home. The Rogerses contacted the Fasanos, who refused to respond. After the Rogerses filed a lawsuit to determine the genetic parents of the babies, the Fasanos agree that if another round of DNA tests indicated the Rogerses were Joseph’s genetic parents, they would give him to the Rogerses. However, the Fasanos insisted on a visitation agreement to protect their ability to see Joseph in the future.
The DNA tests showed that the Rogerses were very likely the genetic parents of Joseph.
In the spring of 1999, the Rogerses and Fasanos filed separate law suits against Dr. Nash and other clinic staff for negligence, malpractice, and breach of contract.
The New York State Health Department said this was the first known embryo mix-up in the state.
Preliminary issues for group discussion:
1. What are the legal, medical, ethical, and the broader cultural issues that need to be resolved in this case?
2. In the collective opinion of your group, how should the case be settled?
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Stage 3: Joseph or Akeil? Gestation, Genetics, and Kinship
In May 1999 the Rogerses traveled to the Fasano’s home to pick up Joseph and bring him home with them. A lawyer for the Fasanos called the exchange “very emotional, very strained, very difficult” (Newsday, May 27, 1999, pg. A41). Prior to exchanging Joseph, the couples signed an out-of-court visitation agreement that stipulated twice-monthly weekend visits, alternating holiday visits, and a weeklong summer visit, all at the Fasano’s home. The Rogerses signed the agreement “with some trepidation,” according to their lawyer (New York Daily News, March 27, 1999, pg. 6), but they were joyful to gain custody of Joseph after trying for so long to have a child.
The Fasanos believed that giving Joseph to the Rogerses was in his best interest, but they were uneasy about separating the boys, and about separating themselves from Joseph. They hoped the visitation agreement would allow the boys to grow up knowing each other as brothers. One of their lawyers described Donna Fasano’s feelings: “The Fasanos have reared, loved, and cared for both children as their own. She is doing this because she loves her boys... She doesn’t look at them as white and black. She looks at them as her sons. She is torn apart by this” (New York Times, March 30, 1999, pg. B1). In a handwritten statement to the press Donna Fasano said, “We’re giving him up because we love him” (Newsday, March 31, 1999, pg. A21).
The Rogerses named their son Akeil Richard Rogers, although the Fasanos had hoped that only the child's last name would be changed. Problems arose during the Fasano's early visits with Akeil when Donna called him “Joey” and urged him to “come to mommy.” (Bergen County Record, May 9, 2001, pg. A1). The Rogerses soon objected to the visitations as onerous, one-sided, and stressful, and asked the court for total parental control with no right of visitation for the Fasanos.
The Fasano’s fought the effort to remove their visitation rights, and in March 2000, they filed a lawsuit to regain custody of Akeil. Donna Fasano said, “You just can’t turn off a love for somebody. He was given to me. Whether it was by error, negligence, it doesn’t matter. He’s here and he’s part of me” (New York Daily News, March 3, 2000, pg. 14). But in October 2000 a state appeals court denied the Fasano’s request for custody and for visitation. In May 2001, the New York State Court of Appeals denied the Fasanos permission for further appeals concerning visitation and custody.
Preliminary issues for group discussion:
1. Who is Akeil's “natural” mother, the woman who gave birth to him, or the woman whose genes he carries? In what ways do gestation/birth and genetics define biological, social and legal relationships between parents and children?
2. How are Akeil and Vincent related? Are they brothers? Are they twins?
3. In what other situations have courts weighed gestation and genetics as grounds for custody?
4. How did race affect how this situation unfolded and was experienced by the participants?
Teaching Notes
There are many ways to adapt this activity to suit students' characteristics, learning objectives, course topics, and time constraints. The following teaching outline uses a jigsaw technique to combine collaborative work in home and special interest groups. The interest groups in Stage 2 develop expertise and perspectives that will be drawn on when students return to their home groups.
Stage 1. Students work in home groups of 4-5 individuals. While discussing Stage 1, students should address the preliminary learning issues and generate further issues for investigation. Before the next meeting, individuals research learning issues outside of class and return to share what they find with their group members.
Stage 2. Before students read Stage 2, use a jigsaw technique to reassign each member of every home group to one of the following interest groups: 1) the Fasanos, 2) the Rogerses, 3) the clinic, 4) the state health department, and {if you have 5-member groups} 5) the courts. Students work on Stage 2 in their interest groups.
Before distributing Stage 3, give interest groups time to digest the information gathered by the members. Each interest group should formulate a majority opinion concerning the discussion questions and other learning issues they pursued. Next, reassemble the home groups. Each home group will now have a representative from each interest group. Give the home groups time to formulate positions on the Stage 2 issues before they report out to the whole class.
Stage 3. Now the home groups read and discuss Stage 3, which describes the status of the case as of fall 2002. Follow home group discussions of Stage 3 with a whole class discussion. The activity can conclude here or branch out into further investigations of scientific, legal, and social issues related to reproductive technologies.
Assessment
This activity has many possibilities for authentic assessment, including writing assignments that engage a variety of audiences, points-of-view, and genres (e.g., popular, scientific, legal). For example, this 'multilogue' assignment can be used as an assessment for individuals or home groups following the problem.
Imagine that Donna and Richard Fasano, and Deborah Perry-Rogers and Robert Rogers meet without their lawyers to discuss the events since April 1998. They wish to consider what relationship they will have, and what relationship Akeil and Vincent ought to have. Each individual has a strong point of view and has been deeply affected by past events, but brings some hope for reconciliation to the meeting. Consider the facts of the case and the interpretations the participants might bring to the legal, medical, ethical, and cultural issues involved. Write the conversation that might occur at this meeting.