With the growing advancement of technology, we are able to solve many problems we originally couldn’t. I’m not talking about things like faster communication or instant food delivery, but something on a more…serious level. Gene editing, in vitro fertilization, infertilization, etc. With breakthroughs like gene editing, in vitro fertilization (IVF), and mitochondrial replacement therapy (MRT), we have the power to address infertility and genetic diseases. However, as we celebrate these achievements, we must also consider the potential difficulties and legal challenges that come hand in hand. So let’s take a look at what these may be.
Here are the main points we’ll cover in this post:
- The Concept of Three-Parent Children
- The Complexity of Parental Rights
- Roles of Surrogacy in the Process
- Health Risk and Protection of Donors
- Weighing the Benefits and Risks
The Concept of Three-Parent Children
Let me first explain what IVF (or three-parent child) is. So a three-parent baby is pretty much an offspring from the genetic material of three parents; one male and two females. There is mitochondrial replacement therapy (MRT) and three-parent, in vitro fertilization (IVF). This is usually done so to prevent the inheritance of mitochondrial disease; a 1 in 400 maternally-inherited mutation that can cause a range of illnesses. There are no cures for this, hence the use of MRT.9
One way to do so is by injecting a small amount of cytoplasm from an egg cell (ovum) of a healthy donor into the mother’s egg, which is then fertilized by the father’s sperm and implanted in the mother’s uterus using IVF. Another way is to remove the nucleus from a donor egg and replace it with the nucleus from the mother’s egg cell. The egg is fertilized with the father’s sperm and then transferred to the mother’s uterus for normal gestation. And there are many other ways this could be performed. But they all generally require one thing, an egg from a healthy donor.10
The Complexity of Parental Rights
Given that, would the donor be a biological parent to the child? Not really. The donor is never the legal parent, meaning they are not responsible for the child and have no parental rights to the child. They waive all rights to any children born due to the egg donation under the terms of an egg donation contract.5 This includes the right to initiate contact with the child in the future. In assisted reproduction (IVF, egg donation, etc.) the woman who gives birth to the child is always the mother, even if the eggs were donated by another woman. Besides having no right to the child, there are other requirements as to who is allowed to donate eggs.4 Candidates can be disqualified for lifestyle habits (such as smoking or a history of drug use), health concerns (genetic disorders, obesity, etc.), usage of certain types of contraception, and basic commitment to scheduling appointments. Egg donors should also be no older than 29, as egg quality and quantity diminishes as women reach their mid to late 30s
The Role of Surrogacy in the Process
But if it was in the case of surrogacy, things would be different.
In surrogacy, another woman is asked to have a baby for them. She is called- in Texas- as the gestational mother. In this, the couple must be married and have to make a written agreement with the woman called a gestational agreement. In this agreement, it explains the legal relationship that each person has with the child. It talks about who will provide healthcare for the mother and baby during the pregnancy, the gestational mother giving up all parental rights to the child, other donors – if involved- also needing to give up all parental agreement, the gestational mother having the right to make all healthcare decisions for herself and the embryo, and the intended parents become the child’s legal parents after being born.
Of course, in this the court is also a part of the agreement. You must ask the Court to approve the agreement before the gestational mother gets pregnant, file a Petition at Court, and have the intended file a birth notice after birth. If the court does not approve of the gestational agreement then the gestational mother is the legal mother. If the gestational mother decides to keep the child, the intended parents have no legal rights to the child, and if they want to become the legal parents they would have to adopt the child.11
Health Risks and Protection of Donors
Besides having no right to the child, there are other requirements as to who is allowed to donate eggs. Candidates can be disqualified for lifestyle habits (such as smoking or a history of drug use), health concerns (genetic disorders, obesity, etc.), usage of certain types of contraception, and basic commitment to scheduling appointments. Egg donors should also be no older than 29, as egg quality and quantity diminishes as women reach their mid to late 30s. Not only that, they are screened and checked for genetic diseases.
Donors can be carriers, meaning they have the recessive allele for the mutation and do not develop or have symptoms of the disease despite testing positive. That doesn’t necessarily mean they are unhealthy, but rather they carry the mutation. It would only affect the child if the father is a carrier of the same disease. Despite this, these donors would be disqualified.
There are many risks, however, with donating eggs. For example, long-term effects include aggressive breast cancer, loss of fertility, and fatal colon cancer. Even without any family history of these illnesses, it is suspected the egg donation is the cause. Infertility rates continue to increase and the desperation for fertility services follows. Young women are lured into donating, often unaware of the health risks when they apply as they are offered monetary compensation during a financially vulnerable moment in their lives. When it is said there is “no known risk” it simply means that there is a complete lack of data than an absence of risk, making it misleading.7 This now leads to another question; is it right for these donations to continue when it can be harmful to the donor? Should we risk providing for someone else’s life when we risk our own? These women have their own futures ahead of them so is it right that they have to suffer when they do something to help others?
The answer is complicated. There’s a 0.000004% risk of dying, 0.1% risk of internal bleeding, 0.5% risk of infection, and a 2-6% chance of developing pain and swelling in the ovaries as a result of the self-injected hormone treatments.3 With this. We still need to research more about whether egg donation is safe for donors long-term. Despite the probability these effects come from egg-donation, there could be a way to prevent them with further research. That could potentially make egg-donation safer and help with the growing infertility rates. But for now, there is- as far as I have read- not many laws or regulations protecting women from things like these.
Weighing the Benefits and Risks
Why not just use adoption instead? Adoption is the other and safer option-in this case- for those with infertility. However, adoption doesn’t give all the benefits donors do. 2
Mainly, the pregnancy experience. Having a donor allows parents to carry and deliver their adopted child themselves as they live through the pregnancy experience. Parents also have legal rights and responsibility for the embryos prior to attempting a pregnancy. Donations also cost less than adoption, and have a short wait to them. However, it is noted that donations will not always result in live birth, while adoption with a reputable agency will bring a baby into the home.
Now in case of a divorce, what happens then? Could the father make a claim that the mother shouldn’t get the baby as she is infertile? Would he use that against her? There should be some law or requirement that prevents either parent from being held unfairly simply for this reason. Something like this shouldn’t be held against you in any way at all.
With the rapidly increasing rate of infertility in today’s world we’re taking advantage of new technology to solve this problem. Using egg donors, IVF, and MRT we have come up with a number of ways to produce a child to infertile couples. But, with the ability to do so, there are going to be legal issues involved. Among this we have parental rights on the child, protection and health risks of donors, surrogacy rights, and more. There are also many restrictions regarding who is a donor or surrogate in order to make sure there is a healthy child produced. Despite the few successful attempts to use three-parent child methods to produce an offspring, the ethical and legal complications for this arise, making us question whether this is appropriate or not. For example, ‘should we be risking the life of a donor simply for the want for a child’, or, ‘is it right for a surrogate to give up a child they raised and worked hard to take care of for 9 months to someone else’. These questions remain in doubt, with very frail answers to them. Only with more research can we actually make a proper law to protect those who need it for becoming a donor or being a part of three-parent children.
Works Cited Page:
1 “1 in 6 People Globally Affected by Infertility: WHO.” World Health Organization (WHO), 4 Apr. 2023, www.who.int/news/item/04-04-2023-1-in-6-people-globally-affected-by-infertility#:~:text=Around%2017.5%25%20of%20the%20adult,prevalence%20of%20infertility%20between%20regions
2 “Donor Embryo Cost Breakdown: Donation Vs. Adoption.” Donor Nexus: Leading Egg Donation Agency in California, donornexus.com/blog/donor-embryo-cost.
3“Egg Donation Risk and Reward.” Public Health Post, 12 Oct. 2020, www.publichealthpost.org/viewpoints/egg-donation-risk-and-reward/
4 “Egg Donor Requirements | What Are the Qualifications to Donate Eggs?” West Coast Egg Donation, www.westcoasteggdonation.com/become-egg-donor/requirements#:~:text=Potential%20candidates%20can%20be%20disqualified,the%20inability%20to%20commit%20to
5 Fertility, Santa M. “Do Egg Donors Have Parental Rights? – Legal Considerations of Egg Donation (2022).” Santa Monica Fertility, 16 May 2022, www.santamonicafertility.com/blog/do-egg-donors-have-parental-rights-legal-considerations-of-egg-donation/
6 “Infertility Patients Fear Abortion Bans Could Affect Access to IVF Treatment.” NPR.org, 21 July 2022, www.npr.org/sections/health-shots/2022/07/21/1112127457/infertility-patients-fear-abortion-bans-could-affect-access-to-ivf-treatment
7 “Know Your Rights: Egg (Ovum) Donation.” Legal Voice, 9 Dec. 2022, legalvoice.org/know-your-rights-egg-donation/.
8 “Paths to Parenthood: Receiving an Embryo Donation.” Harvard Health, 3 Feb. 2022, www.health.harvard.edu/blog/paths-to-parenthood-receiving-an-embryo-donation-202202032682#:~:text=If%20you%20are%20seeking%20to,is%20considerably%20less%20than%20adoption
9 “Three-parent Baby Raises Issues of Long-term Health Risks.” University of Oxford, www.ox.ac.uk/research/three-parent-baby-raises-issues-long-term-health-risks#:~:text=This%20means%20the%20baby%20has,by%20far%20the%20smallest%20contribution
10 “Three-parent Baby.” Encyclopedia Britannica, www.britannica.com/science/three-parent-baby