Read: The fertility doctor’s secret
“All of a sudden my brain went to, I didn’t get to bond with my baby. I wasn’t able to carry him. I wasn’t able to hold him. I wasn’t able to feel him inside of me,” said Anni, breaking into tears, in a video released by her lawyers. The Manukyans spent the next several weeks contacting lawyers and frantically trying to get their son back.
Meanwhile, the parents in New York had spent months anticipating the birth of their babies and now weeks caring for them. They too had gone through the expense and the pain of IVF because they desperately wanted children, and they did not want to give up custody of the boys, according to the Manukyans’ lawsuit. In May, however, a judge ruled in favor of the genetic parents. “There was pretty much just an explosion of sobbing,” says Eric Wrubel, the lawyer who represented the Manukyans in the custody case. Anni got to meet her son for the first time in a hotel lobby in New York.
Wrubel also represented the third couple, who remain anonymous, and they too later got custody of their son. The New York couple say they were “required to relinquish custody” of both babies in their lawsuit. Their lawyer did not return a request for comment.
Until the advent of IVF, the mother of a child was unquestionably the woman who gave birth to that child. The ability to create embryos in a petri dish and then transfer them into the womb—any woman’s womb—made gestational surrogacy arrangements possible and introduced new nuances.* But occasional mistakes by IVF clinics have also created scenarios, like this one, of essentially involuntary surrogacy, which do not merely add nuance to traditional definitions of parenthood, but utterly confound them.
The embryo mix-up with the most direct parallels to the CHA Fertility case comes from the 1990s—also in New York and also involving an embryo mistakenly transferred into a mother of a different race. In 1998, Donna Fasano, a white woman, gave birth to twins, one genetically related to her and the other to a black couple, the Perry-Rogerses, who were patients of the same fertility clinic. Both families sued the clinic and settled for undisclosed amounts. But they also went to court against each other. In 1999, judges awarded the genetic parents, the Perry-Rogerses, permanent custody. In 2000, they denied visiting rights to the Fasanos.
Read: The twins that are neither identical nor fraternal
But the judges of the New York State Supreme Court refused to make their ruling the final word on the rights of a gestational mother. “We will not simply adopt the Rogerses’ suggestion that no gestational mother may ever claim visitation with the infant she carried, in view of her status as a ‘genetic stranger’ to the infant,” the judges wrote. Because Fasano had learned of the mix-up soon after the transfer, the judges likened it to a switched-at-birth scenario that should have been corrected right away. In other cases, the ruling said, “additional considerations may be relevant for an initial threshold analysis of who is, or may be, a ‘parent.’”