This can be settled if we have some good laws about gene donation.
We currently have some guidlines for gamete donation. If you donate sperm through an agency, those gametes are separated from you. You give your consent for the agency to do what they want with the gametes, and no one can hold you responsible for the use of the gametes. If someone creates a child using those gametes you don’t pay child support and have no visitation or parental rights. In the case in Sweden, the donation arangement was informal…the man simply handed the women a fresh sample.
The reason our parenting laws are so confused is that the vast majority of births are not planned. You can’t get out of your child support obligations by claiming that you never intended for that chick you picked up in the bar last month to get pregnant. If you consented to sexual intercourse, you implicitly consented to the possibility of parenthood, regardless of whether you used birth control.
But gamete donation and nuclear donation are different. You can’t really donate these by accident. There are only two options…either you intended the genetic material to be donated, or somebody took it from you without your consent.
Because we still have old-fashioned reproduction, you can’t separate yourself so easily from your gametes. You can’t give someone your sperm and expect things to end there. There has to be another layer between you and the person who wants the gametes…otherwise people could argue that they aren’t responsible for children by claiming they “donated” the sperm that created the kid. BUT…if we have some legal proof that said donatation was voluntary, etc, etc, then the gamete donor forfeits all rights to the child and the other parents of the child forfeit all rights to the gamete donor.
Nuclear donation is actually a bit easier, since it can never happen by accident. Either the nuclear donor consented, or they didn’t. And in the hypothetical given in the OP, the nuclear donor, “Mike”, never gave consent to nuclear donation. He was a minor, and so was incapable of giving consent on his own. The parties that were capable of giving consent were his parents. And in this case, only one of the parents gave consent. And in my opinion “John” didn’t have the power to give consent on his own…both parents would have to give consent.
John has commited a crime by taking another person’s nuclear material without their consent. He might be facing some jail time. If his new wife new about it, she might be an acessory to the crime. She might be facing some jail time.
The surrogate’s case is right out. Thrown out of court. Surrogates don’t have parental rights to children unless they are genetic parents as well.
What happens to Mikey? Well, the judge has to decide if John and his new wife are fit parents…after all, they are criminals, probably in jail. Mikey goes to foster care. The judge has to decide if it is in Mikey’s best interest to stay with John/Wife, or if their parental rights should be terminated. Since we don’t usually terminate parental rights just because of criminal activity, probably not. If I hold up a 7-11, I’ll probably retain custody of my kids. Unless I abuse or neglect the kids themselves I will retain custody. If there is no one to take them in…relatives, firiends, etc…my kids might go to foster care until I’m out of jail, but I’m still legally their parent.
Which means that Marsha is out of luck. She can’t be the parent of Mikey, since John and his wife are.
However, the scenario is unlikely. Because any fertility clinic that does nuclear donation would always be very clear where the nuclear material came from. They could lose their license or suffer from massive bad publicity, maybe be charged with a crime. So when John comes into the clinic with a thermos containing a tissue sample from his dead son Mike, the first thing they are going to ask is, “Where did this come from? Do you have the legal authority to donate this nuclear material?” There will have to be a chain of evidence proving this. And in practice, this means that the clinic will probably never touch genetic material unless they take the samples themselves, from people who are clearly able to give consent to the donation, or the tissue was obtained from another clinic with the same policies, with clear documentation of consent, ownership, storage, etc. No ethical doctor is going to touch a sample a patient brings in themselves. So field emergency tissue harvesting of dying people isn’t going to work. If John wants a clone of Mike, he’ll have to get the tissue taken in a hospital, not by cutting off a toe and sticking it in the freezer. And that means that Marsha would also have to consent, which means the “surprise” element of the hypothetical wouldn’t work.
Yes, you might find a doctor willing to do this for money, but it would be like trying to find a doctor to treat your unexplained bullet wound without asking questions or calling the cops. Possible, but not likely. The doctor would be commiting a crime under the Lemur866 model nuclear donation statute. If you’re Bill Gates or Saddam Hussein or John Gotti you might find such a doctor. For the average schlub like John, extremely unlikely.
So…bottom line, John probably wouldn’t be able to do such a thing because he wouldn’t be able to find a fertillity clinic that would help him. If he did it anyway he would be commiting a crime, theft of genetic material. He might go to jail, but he would keep custody of his child assuming he wasn’t also beating the kid.
Now…what would happen if, say, the baby was a clone of John? No problem, since John is able to give consent to donation of his own genome.
But how about this. Suppose Johan (the kid) grows up, and decides to donate his nuclear material to another couple who want a baby. And John argues that he can’t do that, since it would be equivalent to donating John’s DNA. Since John is the original “owner”, how can Johan give away a copy? Well, this is pretty easy. We don’t give identical twins veto power over parenting or tissue donation. Once John consents to donate his DNA, he loses power over it. If he is Johan’s legal parent, then he will retain that power while Johan is a minor, but once Johan turns 18 John has no more rights. He has essentially signed away the rights to his DNA.
All these cloning situations can be worked out with a little bit of thought, and a simple recognition that people have to consent to medical procedures, and that clones are separate human beings from their nuclear donors.