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Mixed-Up Origins: The Case for a Gestational Presumption in Embryo Mix-Ups

Posted by on Friday, October 6, 2023 in Notes, Volume 76, Volume 76, Number 5.

Betsy Anne Sugar | Vand. L. Rev. 1521

Embryo mix-ups—instances in which fertility clinics mistakenly implant one couple with another couple’s embryo—confound courts’ determinations of who, between the two couples, are the legal parents. Lax regulation of the fertility industry permitted this relatively new injury to develop, and it has led to morally and legally fraught questions of parenthood and personal autonomy. This Note reviews parentage doctrines, beginning with a discussion of the martial presumption; it also tracks how courts have traditionally responded to parentage questions that fertility medicine has generated, including embryo division in divorce and parentage in surrogacy contracts. It then analyzes potential approaches to resolving parentage disputes in embryo mix-ups and outlines how each approach either comports with or contradicts other parentage doctrines. Finally, this Note proposes that in cases of embryo mix-ups, courts should adopt a presumption that the gestational parents are the legal parents. This solution both avoids legally endorsing nonconsensual surrogacy and incentivizes greater clinic accountability for these grave mistakes.

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Betsy Anne Sugar