Blood, Birth, and Bonds: Who Counts as a Parent?

For most of us, our relationship with our parents is relatively straightforward, at least from a genealogy perspective. Your mum is the person who gestated you and from whom half of your DNA originates; your father is the source of the other half of your DNA. Now, this isn’t always the case. Some people are adopted and have no direct genetic relationship with their parents. Others are born via surrogacy, so while they may share DNA with their parents, someone other than their mother gestated them. Or, it might be that you have one parent with whom you share DNA and another that you don’t. In short, while many have an uncomplicated relationship with their parents (from a lineage perspective), there are alternatives.

This is not a trifling matter, either. The importance of personal history, the environment in which we grow, and the genetic sources of the very building blocks of our bodies fundamentally shape who we have been, who we are, who we may become, and who we are in relation to others. We typically think of owing special duties and responsibilities to those we call family, as opposed to those outside that sphere. The motivation for such a special category is debated, with reciprocity, friendship, obligation, and assumed promises all potentially forming a bedrock. Regardless of the why, the concept of family is significant. This makes it even more crucial to examine what it means to have a family, who we count as kin, and what entitles them to such a title are so vital.

The reason that I’m thinking about this now is because of two separate accidents that have recently occurred at IVF clinics, one in Israel and the other in Australia. While the clinics are worlds apart, the incidents have some shocking similarities as, in both cases, the wrong embryo was implanted into a would-be mother, resulting in them gestating and giving birth to a child that, genetically speaking, they had no relationship with.

Starting with the Israel case, as reported by The Times of Israel, in 2022, an IVF mix-up at Assuta Medical Center in Rishon Lezion led to an embryo being implanted into the wrong woman. The woman became pregnant and later gave birth to a girl named Sophia, only discovering through genetic testing that the child was not biologically related to her or her partner. Investigations revealed that the embryo had been intended for a different couple, who were eventually identified as the girl’s genetic parents. The discovery set off a legal and emotional dispute over custody between the birth parents and the biological parents. At present, the courts have ruled that Sophia should remain with her birth parents, as this would be in her best interests. However, Sophia’s genetic parents can appeal this decision and take the matter to Israel’s Supreme Court. So, at this point, the outcome of the mix-up remains uncertain.

In a strangely similar incident, as reported by the BBC, an error at an IVF clinic in Brisbane, Australia, resulted in a woman being implanted with another woman’s embryo in 2023. Gestation occurred as expected, and a child who shared no genetic relationship with its gestator was born. Unlike in the Israel incident, there are no firm details about whether the genetic parents are seeking custody of the child. While the gestating parents have sought legal counsel, it is unclear whether they will act against the clinic for what could be a severe case of negligence.

Despite being in two very different jurisdictions, it is clear that legal and regulatory questions surrounding how such accidents could have happened, what could have been done to prevent them from happening again, and what repercussions those at fault should face abound. However, I’d like to consider the more philosophical question of who can claim parenthood of the children in these and other such cases.

Looking at surrogacy cases is probably helpful as a starting point. In such cases, prospective parents employ the services of someone capable of gestating an embryo to term. In some countries, like India, this can be a service for which the gestator receives payment. In other places, while people can’t be paid for their services, they can receive reasonable expenses, such as in the UK. And in different countries, surrogacy is not only unpaid but actively prohibited, such as in France. However, clear legal frameworks usually determine parental rights and who counts as a parent in those places where it occurs. So, it might be that in the Australian and Israeli cases, we must see what the law requires and follow its lead.

Yet, there is a crucial difference between surrogacy cases and those we’re concerned about. In both the Israel and Australian cases, not only did the biological parents want a child, but so did the gestating parent. The children did not come about as the result of a transactional agreement between someone wanting a child but unable to have one and someone able to have a child but not wanting one. Instead, both mix-up cases concern individuals wanting children and thus wanting a parental role. So, while the rules around surrogacy might prove helpful, I think there is a material difference between that and the cases we’re concerned about, which means such help is limited.

Who, then, counts as a parent in the embryo mix-up cases?  What’s (more) important: gestation, genetics, or care? Is there a hierarchy of lineage linkage in which one of these factors trumps another? Or does Sophia and the unnamed Australian child have four parents, all of whom have equal rights to the parent title? After all, they all wanted to be parents from the start.

Sadly, I don’t have an answer to this question. As noted, the Israeli court has decided that the gestating parents should hold custody of Sophia. But this was on appeal. The Court of First Instance ruled that the genetic parents should take custody. And if the courts can come to contrary rulings, I feel justified in admitting I don’t have an answer. But, as a tentative conclusion, I’m tempted to agree with the courts and say that the person who not only gestates but has also been caring for Sophia for the past two years should retain custody. Yet, I can’t help but return to a quote by one of Sophia’s genetic parents: “Not only are mistakes and injustices not corrected, but they are sanctioned and perpetuated under the cover of the state.” It seems, then, that all involved are victims of circumstance. From what we know, none deserve to be in this situation, and, unfortunately, it does seem that regardless of who ends up being Sophia’s parents, someone will lose out.