Ethical and Legal Questions of the Case of the Savage Embryo

[Sampiro]

For those not familiar with “the Savage embryo” case, you can find it all over the Internet but here’s the nutshell:

Shannon and Paul Morell (of Michigan) were a couple with fertility problems that they solved through frozen embryos made of her egg/his sperm and in vitro fertilization. They had twins through this- healthy other than one was born deaf so they wanted to wait a few years before having another child. They still had several frozen embryos at the fertility clinic however.

Meanwhile Carolyn and Sean Savage (of Ohio) had similar conception issues and turned to the same clinic. The in vitro worked and the pregnancy was going along fine except the clinic made a boo-boo: the Savages were pregnant with an embryo that belonged biologically to the Morells.

Long story short: Mrs. Savage gave birth this week and she and her husband have voluntarily agreed to give the baby to Mr. and Mrs. Morell, his biological parents.

So key point:

-The Morells are the biological parents of the embryo gestated by Mrs. Savage (who has no biological connection at all to the child other than through gestation)

-The Morells did not give permission for their child to be borne of another woman

-The Savages had absolutely no fault in the mix-up (and in fact wanted their own biological child)

Now the situation was resolved as amicably as humanly possible twixt the two couples involved (there’s no way it could be really what you’d call fair to either side, but to the extent that it can it is). Presumably both are suing the pants off the fertility clinic. Perhaps Mrs. Morell will gestate a child for the Morells as a thank you but who-knows.

But here’s the Great Debate:

Let’s say that the Morells and the Savages had not been able to come to any kind of agreement. Since I know very little about the Savages or the Morells most of the “What if’s” are hypothetical. What is your opinion of these questions (and if you’re a lawyer or have legal knowledge please feel free to employ it):
1- Suppose that the Savages, upon learning of the mix-up, had decided to abort the child. Should the Morells have had the right to prevent them?
Let’s further assume- again this is hypothetical- that the Savages were members of a religion that is extremely against abortion in any situtation: should that make a difference? Should the right to choose extend to a child who does not belong to you genetically but is in your body?

2- Suppose that the Savages had not decided to give the child to the Morells and the Morells had sued them for custody of it. Do you think they should have a case? If you were the judge, which side would you rule for (remembering again there was no deception on either side)?

3- Suppose the Morells did NOT want the child and the Savages agreed to raise it, but also wanted a child of their own genetically and could not afford 2 children easily. Should the Morells have to pay child support?

4- Suppose the Morells did not want the child or agreed to let the Savages take it- should the Savages have to legally adopt the child at birth, or should they automatically be considered its parents?

5- Suppose this mix-up was not discovered until the child was 5 years old in which time it had been raised by the Morells. In that case, should the Savages have any legal custody or visitation rights to the child?
Go…

[DigitalC]

@Sampiro

1- Suppose that the Savages, upon learning of the mix-up, had decided to abort the child. Should the Morells have had the right to prevent them?
Let’s further assume- again this is hypothetical- that the Savages were members of a religion that is extremely against abortion in any situtation: should that make a difference? Should the right to choose extend to a child who does not belong to you genetically but is in your body?

No, the Morells have absolutely no right or say in what happens inside another womans body. Their religion has no bearing on anything whatsoever.

2- Suppose that the Savages had not decided to give the child to the Morells and the Morells had sued them for custody of it. Do you think they should have a case? If you were the judge, which side would you rule for (remembering again there was no deception on either side)?

I would rule for the Savages, as i made it clear on the other thread i opened about this i feel like a child growing inside you is yours.

3- Suppose the Morells did NOT want the child and the Savages agreed to raise it, but also wanted a child of their own genetically and could not afford 2 children easily. Should the Morells have to pay child support?

No, they should not.

4- Suppose the Morells did not want the child or agreed to let the Savages take it- should the Savages have to legally adopt the child at birth, or should they automatically be considered its parents?

It came out of her vagina, its her child. No adoption necessary.

5- Suppose this mix-up was not discovered until the child was 5 years old in which time it had been raised by the Morells. In that case, should the Savages have any legal custody or visitation rights to the child?

Did you switch the names here by mistake? if the mix-up was not discovered then the child would be raised by the Savages wouldn’t it? In that case, no the Morells should get no visitation rights.

No matter what happens the clinic who caused this should be sued out of existence.

[Sampiro]

@DigitalC

Did you switch the names here by mistake?

Yes, I did.

Note to all:

[Willy Wonka]Strike that, reverse it.[/Willy Wonka]

[Revenant_Threshold]

@Sampiro

1- Suppose that the Savages, upon learning of the mix-up, had decided to abort the child. Should the Morells have had the right to prevent them?
Let’s further assume- again this is hypothetical- that the Savages were members of a religion that is extremely against abortion in any situtation: should that make a difference? Should the right to choose extend to a child who does not belong to you genetically but is in your body?

I would argue not. Coming from a pro-choice standpoint, I do not believe the rights of the fetus come into play in the decision, so it’s purely a matter of whether the Morells have a claim on it, and whether that trumps whatever rights the Savages have. I would say the Morells do, but that they don’t trump the Savages in this case.

2- Suppose that the Savages had not decided to give the child to the Morells and the Morells had sued them for custody of it. Do you think they should have a case? If you were the judge, which side would you rule for (remembering again there was no deception on either side)?

Yes, I do. This seems a sufficiently complex case, treading enough new ground, that it would deserve some sort of hearing (probably, many hearings, both for this case and other possible cases). As to who should win such a case - well, i’d like to hear the arguments for both sides (and i’ll be reading this thread), but for now I would say that perhaps the Morells should win, but i’m uncertain as to how to reconcile that with my previous answer; it would mean that the Morells could win, the Savages then abort (as might be reasonable), and there be no “crime”.

3- Suppose the Morells did NOT want the child and the Savages agreed to raise it, but also wanted a child of their own genetically and could not afford 2 children easily. Should the Morells have to pay child support?

No. It wasn’t the Savages intent to have another child (even though I believe fertilisation procedures such as this don’t guarantee what number of children will be had, this is much out of any kind of acceptable possible situation), and it isn’t due to any action on behalf of the Morells that they be raising another couple’s child. The “blame” in this is on the part of the organisation who made the mistake; I don’t know about child support, but i’d suspect that some form of monetary recompense would be a good idea.

4- Suppose the Morells did not want the child or agreed to let the Savages take it- should the Savages have to legally adopt the child at birth, or should they automatically be considered its parents?

This seems pretty much like a legal definition question in its entirety. I’m not personally bothered as to which should be the case.

5- Suppose this mix-up was not discovered until the child was 5 years old in which time it had been raised by the Morells. In that case, should the Savages have any legal custody or visitation rights to the child?

Another tricky one. Custody, no. Visitation, yes, I think.

[Tom_Tildrum]

I expect that the legal answers to most of these questions have been previously addressed in the law as applied to ordinary surrogacy contracts. The fact that the surrogacy here was inadvertent may not matter that much. Ethics may be a different story, of course.

1. While she’s pregnant, I don’t think there’s any basis in American law either to restrain her from having an abortion or to compel her to have one. It’s up to Ms. Savage whether to go to term.

2. Following birth, I think the law generally follows biology; custody presumptively goes to the biological parents, not the surrogate mother.

3. Because of #2, I think the Morells would have to put the child up for adoption; custody is not typically awarded to someone who is essentially a stranger to the family. Presumably, under the circumstances, this could be arranged so that the Savages become the adoptive parents, but the Morells would likely terminate their parental rights in that process. As I understand it, they would no longer be liable for child support.

4. Follows from #3. The Savages could not be compelled to adopt the baby, but if they wanted to keep the baby, they would probably have to adopt.

5. I don’t think any of these principles change with the passage of time. If the mistake were found at age 5, the Morells would still be presumptively entitled to custody, and the Savages would have essentially no rights in the matter. The parties could probably agree to have the Savages adopt, if they all so chose. If the Morells insisted on the child coming to them, it would probably be wise for the judge to order visitation, for the sake of the child’s adjustment, but I don’t think the court would be compelled to do so.

Again, these are what I believe to be the answers provided by current law. I’m not trying to say that these are necessarily the only right answers; obviously, this is a subject that is likely to provoke a lot of different views.

[elfkin477]

@Tom_Tildrum

2. Following birth, I think the law generally follows biology; custody presumptively goes to the biological parents, not the surrogate mother.

I don’t know if this would be the case with an embryo that wasn’t implanted in a (paid-for) surrogate. If you look into embryo adoption you’ll find that the couple who “adopts” the embryo *does not *have to go through a traditional adoption process in most states, and are legally considered the child’s parents at birth despite not having a genetic link. In those cases custody goes to the person who carries the child, not the bio parent.

Here’s another question about similar hypothetical cases: suppose the couple who were given the embryo didn’t feel as cooperative as this couple did. Do the biological parents have a legal right to force the couple who carried the child to give up the baby’s DNA for examination? Since a woman normally is considered the mother of children she gives birth to (even in the case of hiring a surrogate the bio-mom often has to adopt her own baby to break this legal presumption) can another private party demand a determination over whether or not it is her biological child? If so, what law(s) allow for this?

[Henrichek]

And I thought the thread was going to be about a crime committed by some ferocious embryo…

[Cat_Fight]

@Henrichek

And I thought the thread was going to be about a crime committed by some ferocious embryo…

Me, too. Still a good band name, though.

[Oredigger77]

My thinking about this issue is only from a guys point of view. There are only two ways for me to have a child I either have to raise it or it has to be related to me biologically. Instead of looking at it from the mothers’ point of view if you look at it from the Dads I think the case becomes much simpler.

1- Suppose that the Savages, upon learning of the mix-up, had decided to abort the child. Should the Morells have had the right to prevent them?

The father have no rights to the woman’s body so of course her decision to abort or not has nothing to do with them.

2- Suppose that the Savages had not decided to give the child to the Morells and the Morells had sued them for custody of it. Do you think they should have a case? If you were the judge, which side would you rule for (remembering again there was no deception on either side)?

The question basically boils down to whether you think a man who has nothing to do with the child should be the father. I think the biologic father wins out but there would defiantly be a court case.

3- Suppose the Morells did NOT want the child and the Savages agreed to raise it, but also wanted a child of their own genetically and could not afford 2 children easily. Should the Morells have to pay child support?

I think that the Morells would not be responsible for child support is the Savages were forced to adopt the baby, which I think they should. If they didn’t adopt and the birth mother was considered the true mother then Mr. Morell would have all of the same responsibilities of any biologic dad who is not living with his child and should pay child support.

4- Suppose the Morells did not want the child or agreed to let the Savages take it- should the Savages have to legally adopt the child at birth, or should they automatically be considered its parents?

Mr. Savage should definitely have to adopt. The birth mother is a different story but I think she should as well.

5- Suppose this mix-up was not discovered until the child was 5 years old in which time it had been raised by the Morells. In that case, should the Savages have any legal custody or visitation rights to the child?

With the 5 year gap I think that raising the child has caused it to belong to the birth parents so I don’t think the Morells should be able to get custody but I think visitation is perfectly valid.