It's a nightmare scenario straight out of a primetime drama: A child-seeking couple visits a fertility clinic to try their luck with in-vitro fertilisation, only to wind up accidentally impregnated by the wrong sperm.
An animatronic baby at the London Science Museum. Photo: Getty
In a fascinating legal case out of Singapore, the country's Supreme Court ruled that this situation doesn't just constitute medical malpractice. The fertility clinic, the court recently ruled, must pay the parents 30 per cent of upkeep costs for the child for a loss of "genetic affinity". In other words, the clinic must pay the parents' child support not only because they made a terrible medical mistake, but because the child didn't wind up with the right genes.
At a time when rapidly advancing science and technology puts things like genetically engineering embryos to prevent disease in the realm of reality, the case sets an intriguing precedent. First, it places a monetary value on the amount of DNA that a child shares with their parents. And it suggests that the base genetic makeup of a child can actually be "wrong".
"It's suggesting that the child itself has something wrong with it, genetically, and that it has monetary value attached to it," Todd Kuiken, a senior research scholar with the Genetic Engineering and Society Center at North Carolina State University, told Gizmodo. "They attached damages to the genetic makeup of the child, rather than the mistake. That's the part that makes it uncomfortable. This can take you in all sort of fucked up directions."
In the court case in question, the couple underwent a successful IVF procedure at Thomson Medical Centre in Singapore and gave birth to a healthy baby girl in 2010. Soon, though, the couple suspected something was amiss. Their daughter's features seemed markedly different from their own, and different from those of their first child. A genetic test soon confirmed that their daughter was related to her mother, but not her father. The centre then confirmed a mistake: An anonymous donor's sperm had accidentally been used to inseminate the mother's egg. The couple were of Chinese and German heritage. But the genetic father of their daughter was Indian.
The couple sued the medical centre, seeking damages including child care costs through the age of 21. The court ultimately granted those damages, setting a new legal standard. Whether we're related to our kids, the court found, is highly valued in society — it is, after all, the reason so many people spend so much time and money on IVF procedures in the first place.
Interestingly, the court settled on establishing a new category of loss — genetic affinity — in order to avoid sending the message that the child's birth itself was a mistake, a basis upon which courts often deny wrongful birth claims. These cases often arise when, say, one parent has been sterilised but a couple gets pregnant anyway. In a "wrongful fertilisation" case in New York, the state supreme court found that "it cannot be said, as a matter of public policy, that the birth of a healthy child constitutes a harm cognizable at law".
In the Singaporean case, however, the court disagreed. Parents, they found, have a legal right to share traits like eye colour and skin colour with their children. The court made that determination relying on an obscure 1999 law review article that argues "parents have an interest in having children with whom they share symbolically identifying traits". This on its own raises all kinds of questions.
"Does this mean that adopted children are more or less valuable?" said Kuiken. "Or you can imagine a divorce scenario in which child support is determined by what percentage of genes a parent shares with the child. Or blame is placed on one parent for a child inheriting a particular disease."
According to Eleonore Pauwels, a science policy expert at the Wilson Center, the ruling defines kinship as something that's only skin deep. "Defining someone by their genotype is the most reductionist way you can look at an identity," said Pauwels told Gizmodo. "Genetic affinity is such a superficial concept. It questions the very basis of what makes someone a parent."
But the problems this ruling raises extend beyond genetic affinity. In creating this new category of loss, the court sought to avoid suggesting there was something inherently wrong with the child's birth, but the ruling suggests specific genetic traits are more valuable than others all the same.
Pauwels said that for her this brings to mind one particular quote in the 1997 sci-fi film Gattaca: "They used to say that a child conceived in love has a greater chance of happiness. They don't say that any more."
"This sets the stage for much more personalised, genome-level discrimination," she said.
What if, for example, a mother found out she had a devastating mitochondrial disease and underwent the controversial "three-parent baby" technique to avoid passing that DNA on to her child, and it failed? Could she sue for the child's DNA — its existence — being incorrect? Further down the line, should science and the law ever allow parents to select specific genetic traits, could you sue if your kid had the wrong eye colour, or a lower-than-expected IQ? If you engineered a child, and it wound up having more "genetic affinity" with one parent than the other, does that constitute some kind of loss?
"This opens up a dangerous box that when we start talking about editing the human genome," Kuiken said. "A ruling like this places value on the specific genetic makeup of a child."
Obviously, the parents in the Singaporean case were at the wrong end of a devastating medical mistake. But in ruling that the genes their child wound up with warrant financial reward in a court of law, the court is placing a value on her genes, whether intended or not. And that is the top of one very slippery slope.