I’m trying to reason out something for a short story…
So, you are cloned. Biologically, doper 2.0 is your identical twin, correct? From a biological standpoint, it would seem to make your parents the clones parents, even though they had nothing to do with the clone’s creation.
But what about from a legal standpoint? Say the clone was abandoned, and the state wanted to sue for its care, who would be on the hook for the clone’s upkeep - the person who had themselves cloned, or their parents?
Or maybe your parents decide that you’re completely nuts and don’t want you bringing up lil doper 2.0, so the three of you battle custody in court. Which side’s lawyers would have a better chance of arguning that their client is the parent?
If you are cloned and carried in someone’s womb, then that person (and their spouse) are the parents. If the clone is born in a test tube then I don’t think that is settled yet.
Unless considerable advances are made in cloning technology, the cloned child will have to be born through pregnancy by a woman after the embryo is implanted into her. So the child will have a surrogate mother, who is not the biological mother, but who might have some rights and responsibilities with respect to the child.
Right now I’m pretty sure the GQ answer is: undetermined. There is no law in place that I know of in the U.S. that addresses this. (Or anywhere else.) Mainly because clones don’t exist. The exact circumstances of an act matter greatly in law. You can argue about what you think the law might become depending on what you think will happen given a certain set of facts, but there can’t be a legal answer to this until there is law on this.
I assume your analogy is a fertilized egg transplant, correct? Well, using a similar analogy, one parent can have a child’s DNA tested, and the other matching parent will become the legal birth parent, and possibly liable for child support. Thus DNA can determine parenthood.
Of course, the most analogous modern case would be an abandoned child with unknown parentage. Can a parent (or set of parents) use DNA to regain custody of the child?
ETA: From a story standpoint, I’m not sure it would come up unless the child was known not to be born to the biological mother.
They can try. But in custody disputes the fundamental issue is not “who is this child’s [genetic/legal] parent?”, but “what custody arrangement is in the best interests of this child?”.
Through DNA testing you can certainly establish that you are the child’s genetic parent, but it doesn’t follow that it is in the best interests of the child to be placed in your custody. We don’t have to look to exotic hypotheses like test-tube cloning to find precedents for awarding custody to someone who is not the genetic parent over someone who is.
This has been settled in animal breeding & bloodline registrations, with a different answer.
A newborn horse is registered as the progeny of the mare & stallion that are the genetic parents of the foal – the horses that provided the actual sperm & egg.
So a fertilized egg is implanted in the womb of a host mare (or several eggs in several host mares) the resulting foal(s) are registered as being the produce of the original mare that provided the egg(s). even though the foal(s) were carried in and born from the womb of the host mare(s). And most horse breed registries now do actual DNA testing (blood testing or hair follicles, mainly) to verify that each foal is properly registered to the actual genetic parents.
Donor egg.
Donor sperm.
In Vitro fertilization.
Implantation of the embryo in a surrogate womb.
9 months later, the parents have a new baby. They are they legal parents of the baby, even though they have no genetic relation to the baby and neither of them gestated the baby.
Or an even more on point analogy: adoption. The legal parents of a child are not always the biological parents of the child.
And so, who are the legal parents of a clone? Well, the people who caused the clone to be created, with the intent of becoming parents to the clone. Of course, an ethical fertility clinic would never create a clone without the consent of the nuclear donor, and without people who intend to become parents of the baby.
If someone steals your DNA, and creates a cloned baby in a uterine replicator in their basement, and then dumps the resulting baby on the doorstep of the courthouse, then who is the legal parent?
I would think the answer would have to be the madman who created the baby. Except they are obviously an unfit parent, and therefore lose their custody over the baby, and the baby becomes just another baby with unfit parents. And this situation happens over and over again today. So the court looks around to find relatives of the baby–grandparents, aunts, uncles, older siblings, and so on. And if none of these people are suitable, the child goes into foster care, or can be placed for adoption.
Having received the birth certificate of my son who was born a month ago, I’d have to say that the clone’s legal parents are whomever the creators put on the birth certificate.
The new birth certificate, instead simply of having a box for “Mother” and a box for “Father”, it has “Mother/Parent” and underneath that, check boxes for “M/F” to indicate the sex of that parent, and “Father/Parent”, and underneath that, check boxes for “M/F” to indicate the sex of that parent. While this was no doubt done in order to accommodate gay couples having families, it pretty much also says that the people filling out the birth certificate can put down whatever name(s) they want to as parent(s) of the baby regardless of biological relationship, and the same could be true of a clone.
As with any legal question, YMMV by jurisdiction. As far as German law goes, it is statutorily established that the mother of a child is the woman who gave birth to him or her, irrespective of genetic relationships. Thus, the surrogate mother is legally the mother of a child, not the egg donor.
Regarding the father, German law, and I’m pretty sure a lot of other legal systems, have a presumption in place according to which, if the mother is married, the mother’s husband is presumed to be a child’s father. This presumption is rebuttable, but it is rebuttable only by a due process (meaning people who wish to challenge the presumption have to formally go to court and get a ruling to the contrary). What is more, the presumption holds even where it is evident that the husband cannot be the child’s father, as long as the court ruling has not been issued. I don’t see why this rule (which I am pretty sure exists in a lot of other jurisdictions as well) should not apply to clones.
