Abstract
G
To illustrate what mtDNA transfers entail, and the legal and ethical issues they pose, consider the following hypothetical:
It is 2018 and your neighbors introduce you to their baby girl, Kathryn, who just came home from the hospital. Kathryn looks like any other newborn that you have met, but as it turns out, she is immensely unique.9 Kathryn is one of the first babies born in the United States who is genetically related to three people.10 A year earlier, your neighbors Liz and Samantha decided that they were ready to start a family. Liz soon found out, however, that she was at risk of passing on a serious heart disease to her children through her mitochondrial DNA.11 Thanks to recent developments in assisted reproductive technology (ART), though, Liz was able to use an mtDNA transfer12 to produce Kathryn, a genetically related offspring who is not at risk of inheriting the mitochondria-linked disease.13 The mtDNA transfer involved transfusing the nuclear DNA from one of Liz's ova into one of Samantha's ova with healthy mtDNA.14 Next, the ovum was fertilized by sperm provided by Samantha's closest friend, Jake.15 The resulting embryo was implanted in Liz's uterus, and nine months later, she gave birth to their daughter, who is genetically related to all three adults.16 Liz, Samantha, and Jake all consider themselves parents and plan to be involved in raising Kathryn.17 Unfortunately for these three adults, your state recognizes only two legal parents, and they are in for an uphill legal battle.18
Although this scenario is hypothetical, mtDNA transfers are currently generating considerable debate.19 Three main questions emerge from this debate: (1) Should clinical trials on humans be allowed to proceed?20 (2) If mtDNA transfers are allowed, and especially if they become routine, what are the legal consequences? and (3) How must the law change, if at all, to make way for children who are genetically related to three adults? This article explores these questions while focusing on the legal implications of mtDNA transfers. As this technology emerges, laws will inevitably have to address legal parentage beyond the traditional two-person framework.
The United Kingdom has been at the forefront of exploring mtDNA transfers and drafting legislation that would sort out the legal issues created by this new procedure.21 The United States has just begun to address these crucial concerns.22 This article suggests that states should follow California's23 and British Columbia's24 lead by passing legislation that allows the recognition of more than two legal parents. When it comes to ART, the law is often in “catch-up mode, [rather than] in shaping mode.”25 State legislatures now have a chance to change that pattern, providing guidance to courts, fertility clinics, patients, donors, and society as a whole as mtDNA transfers emerge as a promising way to stop debilitating diseases. As genetic kinship expands to a wider range of people than simply one mother and one father, the law must also expand.26
I. Covering The Basics: Science, Ethics, and Law
A. From the Lab to the Crib: How Science Makes Three-Parent Babies Possible
Science is the impetus of technologies that enhance our health, quality of life, ability to reproduce, and countless other functions related to genetics and the human body.27 Mitochondrial DNA transfers are merely one piece of a much larger body of scientific research that revolves around three axes: genetics, reproduction, and disease prevention.28 The following sections briefly describe the scientific processes involved in mtDNA transfers, as well as recent Food and Drug Administration (FDA) meetings that focused on scientific concerns that must be addressed before clinical trials introducing mtDNA transfers in humans can proceed.29
1. Mitochondrial DNA Transfers 101
Female animals produce ova that contain both mtDNA and nuclear DNA.30 Synthesis of mtDNA is separate from the synthesis of nuclear DNA, and mtDNA has a much greater mutation rate.31 Mutations in mitochondrial DNA cause a variety of illnesses and diseases, including muscular dystrophy,32 respiratory problems,33 and cancer;34 mtDNA mutations can also alter the aging process.35 More than 300 pathogenic mtDNA mutations have been confirmed, which cause abnormalities that range in severity from mild to life-threatening.36 In the United States,37 approximately 1,000 to 4,000 newborns each year develop a mitochondrial disease.38 For many of these children, the age of onset is less than 10.39
Mitochondrial DNA transfers, then, strive to eliminate the risk of women passing mitochondrial diseases on to their offspring.40 The procedure requires “removing the nucleus from one human egg, whose cytoplasm contains defective mitochondria, and placing it in an enucleated41 egg with healthy DNA for subsequent [in vitro] fertilization.”42 In sum, DNA from three individuals (two women's ova and one man's sperm) is used in an attempt to prevent the inheritance of disease, while allowing intended mothers to contribute nuclear DNA to their offspring.43
2. FDA Oversight: Synopsis of Recent Committee Meetings Regarding mtDNA Transfers in Humans
The FDA's Cellular, Tissue, and Gene Therapies Advisory Committee (“Committee”) recently asserted authority44 over mtDNA transfers, holding a two-day meeting on the issue, from February 25–26, 2014.45 The meeting covered a range of related topics, including: (1) “current scientific information on the biology of mitochondria;”46 (2) “the unique genetic inheritance of the mitochondrial genome;”47 (3) “a brief overview of mitochondrial diseases;”48 (4) “the role of mitochondria in oogenesis and early zygotic development;”49 (5) risks affiliated with allowing clinical trials to proceed with human participants;50 and (6) how clinical trials might be properly designed to gauge the safety and efficacy of mtDNA transfers.51 As suggested by this list of topics, the Committee limited its inquiry specifically to scientific, technologic, and clinical issues.52 It acknowledged that numerous ethical and public policy issues surround the topic of genetically modifying human ova, but deemed those issues “outside the scope of this meeting.”53
The Committee focused primarily on the risks potentially associated with allowing mtDNA transfers and on how clinical trials should be designed if they are to proceed.54 The risks identified include the potential for causing unforeseen damage to the resulting ovum or embryo, accidental transfer of unhealthy mtDNA from the affected ovum or embryo, and incompatibility between mtDNA and nuclear DNA.55 Considering these risks, the Committee highlighted five factors that should be the core of future clinical trial designs to ensure patient safety and the well-being of future generations56 (because mitochondrial transfers not only alter the immediate offspring's germline, but also contribute to intergenerational change for any female offspring who eventually reproduce).57 The five key factors were to:
• Identify appropriate enrollment criteria; • Clarify who would function as a control group; • Implement mechanisms to monitor the safety of female patients and resulting children; • Measure the efficacy of mtDNA transfers both during and after fetal development; and • Ensure ethical, long-term follow up.58
Although the Committee produced a comprehensive briefing document that is available to the public,59 it did not reach a formal conclusion regarding whether researchers will be allowed to begin clinical trials.60 The FDA has not yet indicated when it plans to make a final decision on this question.61 Although there are competing views about whether the FDA will allow clinical trials to proceed, it seems highly likely that under proper, restricted circumstances, researchers will ultimately be able to conduct clinical trials and proceed to offer mtDNA transfers to women in the United States. The FDA has already declared that “[c]linical trials are essential to ensure successful translation of these mitochondrial manipulation technologies to clinical practice,”62 which suggests that trials will be approved once researchers have addressed the concerns raised in the February Committee meetings. Furthermore, the United Kingdom has already announced its plan to allow mtDNA transfers and is charging full speed ahead to adopt suitable, related laws.63 The United Kingdom's momentum is, at the very least, indicative of the imminent possibility that mtDNA transfers will become more common in the near future.64
B. The Designer Baby65 Debate: Are Mitochondrial DNA Transfers Ethical?
The science behind mtDNA transfers strongly influences the ethical debate about whether this is a “dangerous step”66 or a “promising way to stop…deadly disease[s].”67 Part 1 below addresses arguments against allowing mtDNA transfers to proceed, whereas Part 2 identifies arguments in favor of allowing mtDNA transfers. Even assuming that mtDNA transfers will be sanctioned in the near future, it is extremely valuable to consider these competing ethical concerns: ethics will inevitably influence future laws enacted in response to this new genetic technology.
1. Arguments Against Allowing Mitochondrial DNA Transfers
Numerous individuals and groups oppose mtDNA transfer.68 The most notable of these is arguably the Center for Genetics and Society (CGS), a U.S.-based organization that composed a sign-on letter before the FDA's Committee meeting in February, urging the FDA to prohibit mtDNA transfers.69 The Center raises numerous concerns about the “profound” safety, efficacy, policy, and social issues that mtDNA transfers may pose.70 Arguing that mtDNA transfers in animals have resulted in poor outcomes,71 the organization urges that mtDNA transfers are an “evolutionarily unprecedented experiment.”72 Perhaps CGS's greatest fear is of the precedent that mtDNA transfers may set, leading to more widespread and problematic germline modifications.73 Whether this “slippery slope” argument is strong enough to condemn mtDNA transfers entirely is a key issue.
Marcy Darnovsky, the Executive Director of CGS, recently published an Op-Ed in the New York Times which further described the concerns outlined in CGS’ sign-on letter to the FDA.74 One of Darnovsky's overarching criticisms of mtDNA transfers is that “safer and simpler” alternatives exist, such as preimplantation genetic diagnosis (PGD).75 Darnovsky describes mtDNA transfers as the “eggs-as-Lego-pieces approach,” and warns that “[s]imply being able to do something doesn't mean we should do it.”76 These warnings have been respectfully considered by the FDA, as it proceeds slowly in analyzing the uncharted territory of mtDNA transfers.77
2. Arguments in Favor of Mitochondrial DNA Transfers
Fortunately for women who risk passing mitochondrial diseases on to their offspring, many of CGS's and Darnovsky's arguments have been substantially rebutted.78 For example, two bioethicists recently wrote a Letter to the Editor of The New York Times challenging the idea that mtDNA transfers will “usher in a new era of eugenics.”79 They assert, “[The] argument that pursuing this technology will…end in the creation of soldiers who never sleep[] holds no water: We're not talking about selective enhancement, but the prevention of rare but serious diseases that kill most who inherit them before they reach adulthood.”80
Susan Soloman, the Director of the New York Stem Cell Foundation, is in agreement.81 Soloman clarifies that mtDNA transfers do not involve making changes to existing genes.82 She suggests that mtDNA transfers are more akin to in vitro fertilization (IVF), which is now widely accepted,83 than to the type of genetic modification that would allow intended parents to select genes for taller, stronger, faster, and smarter offspring.84
The FDA recognized the distinction between technology promoted to allow “designer babies” and the use of mtDNA transfers to prevent the inheritance of mitochondrial diseases.85 The Committee emphasized the unique potential of mtDNA transfers to provide women with the opportunity to produce genetically related children who will not inherit debilitating diseases.86 Art Caplan, the Director of Medical Ethics at New York University's Langone Medical Center, has also highlighted this rationale, arguing that multigenerational disease prevention is ethical as long as clinical trials prove that the procedure is safe.87
The FDA Committee also countered Darnovsky's suggestion that PGD is a valid alternative to mtDNA transfers.88 Despite the general benefits of PGD, it provides limited value to the women who would benefit from mtDNA transfers.89 PGD allows embryos that are fertilized in vitro to be tested for certain known mtDNA mutations but is able to identify only mutations that exhibit a low ratio of mutant to normal mtDNA.90 The FDA also recognized that PGD requires multiple rounds of testing and still does not provide a clear prognosis.91
Overall, there are strong arguments rebutting the ethical concerns related to mtDNA transfers. Overarching skepticism about techniques that resemble germline enhancement or eugenics is valid, but broad doubts are not strong enough to outweigh the benefits of technological innovation and disease prevention. Ultimately, no procedure is entirely without risk:92 “If impractically high precautionary thresholds were decisive, we would not have vaccines, nor IVF, nor any other advance[ments].”93 Mitochondrial DNA transfers have largely been recognized as “a novel reproductive option for the prevention of inherited mitochondrial diseases,”94 and although the ethical debate about designer babies is far from over, it is likely that mtDNA transfers will not be prohibited based on these fears alone.
C. The Legal Landscape: Expanding Parentage
Mitochondrial DNA transfers make it possible, for the first time, for children to be genetically related to three people at birth.95 Because of this phenomenon, the colloquial term “three-parent babies” has emerged.96 Although the phrase is potentially misleading, because not all progenitors97 are legal parents,98 the phrase does point to the most significant legal issue that arises as a result of mtDNA transfers: Who can be recognized as a legal parent of offspring resulting from mtDNA transfers? Part 1, below, reviews the landscape of parentage laws in the United States, while Part 2 explores a new Canadian law that expands parentage beyond two adults per child.
1. Legal Parentage in the United States
a. The Role of Genetics
Historically, legal parentage in the United States has been defined based on genetic kinship, except under rare circumstances (for example, because of marital presumption statutes99 or laws that allow anonymous gamete donors to contractually avoid the obligations of legal parentage100). Because of the modern development and proliferation of IVF and surrogacy, legal parentage is more regularly defined not only on the basis of genetics, but also based on gestation and intent, which has led to the “biology plus” standard.101 In addition, the legalization of same-sex marriage in numerous states has contributed to questions about whether genetics, gestation, marriage, or intent should be the ruling factors in determining parentage in cases involving ART.102 The role of statutes and contracts in defining parentage is also in flux.103 It remains true, however, that genetics plays a key role in defining legal parentage across the United States.104
b. Two Parents, Max
In addition to limiting who can be declared a legal parent, states have historically limited how many people can be declared legal parents for an individual child.105 States have almost entirely restricted parentage to two adults per child, declaring that privileges and obligations must be shared by two legal parents at most.106 Only recently have individual judges started to grant legal parentage to three people in extremely rare cases, without the support of state legislation.107
Parental privileges and obligations are numerous108 and include, but are not limited to: visitation and physical custody rights, the right to make medical decisions, the ability to sign school permission slips, and the responsibility to pay child support.109 Children in return rely on their legal parents for “food, clothing, shelter, love, care, education, …guidance…[and] a social identity.”110 Children rely on other adults as well, but no matter how many adults provide benefits to a child, and regardless of whether ART, adoption, or re-married parents lead to expansive families, states have routinely limited legal parentage to two adults per child.111
c. Senate Bill 274
In October 2013, California changed everything.112 California boldly became the first state to enact a law that allows courts to recognize more than two parents.113 The law, Senate Bill 274,114 allows three legal parents to share legal custody and financial responsibility for a single child under certain circumstances.115 Although recognizing three legal parents was perhaps inevitable because of increased legal recognition of same-sex marriages,116 Senate Bill 274 was the first law of its kind in the United States and remains the only three-parent law as of May 2014.117
Senate Bill 274 was a response to a “hard case [that] made bad law, three times over,”118 involving a same-sex married couple, an affair, an opposite-sex biological parent, and an attempted murder.119 The court held that no child could have three legal parents, although the facts of the case suggested that the law should, at least sometimes, allow an exception.120
Senate Bill 274 now reads:
“Parent and child relationship” …means the legal relationship existing between a child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. The term includes the mother and child relationship and the father and child relationship. … This part does not preclude a finding that a child has a parent and child relationship with more than two parents. … In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to parentage.121
This language, though crafted in response to families headed by same-sex parents, opens the door for recognizing multiple parents under other appropriate circumstances and may perhaps apply in future situations involving mtDNA transfers. Some scholars speculate that it is “only a matter of time until other states that have legalized same-sex marriage adopt a similar law to California's.”122 Some scholars have even endorsed “multiplex parenting,” which would involve using technology to create children genetically related to four or more adults.123 Although states do not appear anywhere near ready for this “radical expansion” of legal parentage, they may be on the cusp of following California's lead to acknowledge three legal parents under rare circumstances.124
2. Legal Parentage in British Columbia: The Family Law Act of 2013
Although California is the only U.S. state to have passed a law officially allowing more than two legal parents per child, British Columbia has similarly expanded legal parentage.125 In March 2013, British Columbia enacted the Family Law Act, which is similar to Senate Bill 274 in that it allows children to have three (or more) legal parents, as long as that determination is in the child's best interest.126 One of the main differences between Senate Bill 274 and the Family Law Act is that British Columbia requires intended parents to enter a contractual agreement pre-conception.127 The Family Law Act clarifies that if a party to the agreement withdraws or dies before conception occurs, the agreement is “deemed to be revoked.”128 Once conception occurs, however, the Family Law Act recognizes that the parties to the agreement are the resulting child(ren)'s parents.129
In October 2013, the Family Law Act allowed three parents to be acknowledged on their baby's birth certificate for the first time in British Columbia.130 The family's happiness with their triple-parent arrangement has reaffirmed support for the Family Law Act's innovative and flexible model.131 This family's success also serves as an example of what the Family Law Act seeks to accomplish: prioritizing the safety and well-being of children above everything else and offering children the “best family environment possible.”132
II. Fit Parents, Unfit Laws: Clarifying The Legal Issues that Mitochondrial DNA Transfers Create
Mitochondrial DNA transfers, like most innovative medical technologies, create new legal and ethical issues, which current state laws fail to address.133 With mtDNA transfers on the horizon, the greatest legal issue134 is how to define the privileges and obligations of the three adults who are genetically related to resulting offspring, within a legal sphere that largely limits parentage to two individuals.135 Ironically, even though California's Senate Bill 274 was created to recognize non-genetic parents,136 it exists as the most relevant example of what state laws should look like in order to recognize more than two genetic parents. British Columbia's Family Law Act, though more restrictive than California's law, also provides valuable insight into what possibilities exist for statutorily expanding legal parentage.137
While other U.S. states may already be considering drafting and enacting statutes to expand legal parentage to adults without genetic or gestational ties to their children,138 states increasingly must be concerned with expanding legal parentage precisely because more than two adults can now be genetically related to a single child.139 If states continue to limit legal parentage to two adults, weighing various claims based on genetics, gestation, marriage, and intent, courts will soon be burdened with incredibly difficult decisions that are more appropriately made by legislatures.140 Courts have already faced immensely challenging cases (such as the case that forced California to pass Senate Bill 274), which have arisen as a result of same-sex parents raising children who are also genetically related to an opposite-sex adult.141 These challenges will become nearly insurmountable once three or more claimants all assert the most historically significant factor: genetic kinship.142
Although intent should certainly remain a “litmus test for the hard cases,”143 genetic kinship is nearly universally agreed to be the “appropriate starting point” for determining legal parentage.144 A law professor recently surmised:
Parents are born with the birth of a child. Notwithstanding the scientific breakthroughs in reproductive technology and the more inclusive modern understanding of the family unit, every child begins with two (and only two) suppliers of genetic material and one (and only one) gestational carrier. Thus, the only logically clear starting point for a legal definition of parentage begins with these three claim-holders ….145
Today, these numeric assumptions no longer hold true. While there can still only be one gestational carrier, there can be more than two suppliers of genetic material per child; as the number of parental “claim-holders” expands, so must the law.146
III. A Statutory Solution
The most logical and fair legal solution to the challenges that mtDNA transfers create is for states to enact laws that redefine parentage to include two or more adults. Statutes that expand parentage beyond two adults per child, in appropriate situations, will provide clarity, uniformity, and security to courts, adults using mtDNA transfers to avoid passing mitochondrial diseases on to their offspring, and the resulting children. State legislatures are the proper venues for refining family law147 to account for newly possible family formations in this era of increasing assisted reproduction and genetic modification.
A. Three (or More) Parent Statutes
California's Senate Bill 274, which amended the state's Family Code, provides key guidance for states endeavoring to expand legal parentage.148 First, Senate Bill 274 provides courts with an overarching framework, noting that “[m]ost children have two parents, but in rare cases, children have more than two people who are that child's parent in every way.”149 States adopting laws that allow recognition of three genetic parents in mtDNA transfer cases should include similar provisions, expressly indicating that parentage is no longer limited to two adults per child.150
Second, Senate Bill 274 and Canada's Family Law Act include similar main provisions that future legislation in other states should mirror.151 These provisions include: (1) who can seek a parentage determination; (2) how parentage can be established (e.g., according to genetic kinship as verified by specified medical tests); (3) when courts have jurisdiction over parentage matters; (4) what privileges and obligations attach to a determination of parentage (including, but not limited to custody, visitation, child support, and inheritance); and (5) how courts should divide those privileges and obligations among more than two legal parents.152
Third, states can include other provisions to narrow the scope of statutes as they see fit. For example, states could declare that they believe it is generally in children's best interests for triple-parentage determinations to be made pre-conception, pre-birth, or within a specified amount of time post-birth. The Family Law Act's pre-conception contract requirement is arguably the most restrictive.153 States adopting this limitation would effectively compel intended parents to enter a contract before an mtDNA transfer even took place.154 Statutes could require pre-conception court orders approving pre-conception agreements, which would serve as legal protection for the parties involved and certify that three adults should be listed on the child's birth certificate.155
A less restrictive approach would be to allow the three progenitors to seek legal parentage recognition at any time, or would even declare all three progenitors to be parents without further judicial action, including classifying the mtDNA “donor” or sperm “donor” as parents unless anonymous donation and other legally sanctioned limitations prevented that recognition.156 State statutes expanding legal parentage will likely vary greatly in how they treat known (as opposed to anonymous) women who contribute mtDNA: They may be presumed to be donors/non-parents unless there is a contract stating contrary intent among the parties; they may be presumed to be donors/non-parents unless there is evidence to the contrary (even if it does not rise to the level of a contractual meeting of the minds); or they may be presumed to be parents, as they intentionally contributed genetic material to form an embryo, and thus a child.157
No matter how states decide to structure limitations, presumptions, and defaults to provide for children's best interests while working within existing legal and ethical frameworks, it is crucial that states move toward enacting legislation that, at a minimum, allows recognition of three genetic parents. States will also differ in deciding whether to create laws that resemble Senate Bill 274 and the Family Law Act, or to create laws that instead expand parentage to acknowledge three parents only when they are all genetically related to a child.
Ultimately, although state statutes may simultaneously extend legal parentage to three people (1) in same-sex or stepparent cases where the adults are not genetically related to their children, and (2) in mtDNA transfer cases where the adults are genetically related to their children, the two issues are distinct. The first seeks to recognize non-biological parental figures as legal parents,158 while the second seeks to ensure that parental figures who are genetically related to their children can be recognized as legal parents,159 when there is typically a two-parent cap. Whether states address both issues in the same legislation will likely differ from state to state, based on whether same-sex marriages are legal in the state and whether researchers and clinics within the state offer mtDNA transfers.
B. Keep the Two-Parent Cap: Why Critics Think Three Legal Parents Is One Too Many
This proposed statutory solution to lift the two-parent cap on legal parentage will not be universally accepted. There are various reasons people object to allowing more than two parents per child, beyond the fact that two-parent family structures are familiar in the United States. Three prominent arguments against expanding legal parentage if mtDNA transfers become more common (or even routine) are: (1) it will be too difficult for three people to co-parent, and this will negatively impact children;160 (2) many legislators will refuse to pass “radical” legislation expanding parenthood; and (3) mtDNA “donors” contribute only a small, fractional amount of DNA and need not be recognized as parents.161 The following three Parts are dedicated to acknowledging, and rebutting, these criticisms.
1. If Two Parents Disagree Often, Three Parents Will Never Agree
We all know that parents disagree. Married parents disagree,162 divorced parents disagree, never-married parents disagree, opposite-sex parents disagree, and same-sex parents disagree. No matter their age, sex, or sexual orientation, parents routinely make decisions about their children that are deeply personal and often difficult. It is a logical assumption that if two parents disagree regularly, three parents would disagree even more frequently. Two parents might even team up against the third. The overarching concern with states passing statutes to expand legal parentage, then, is that more parents will lead to more disagreement and therefore offer less stability to their children.163 A related concern is how parental privileges and obligations will be divided among three parents, especially when they likely will not live in the same household. Lastly, where will the line be drawn? How many parents is too many parents? “If a child can have three parents…why not four, or six, or a dozen?”164 Will allowing three parents per child “open the floodgates” to claims from other members of an extended family?165
These concerns are legitimate but ultimately do not outweigh the reasons why adults who are genetically related to offspring produced via mtDNA transfers should be recognized as legal parents. Parents who disagree about child-rearing decisions are not necessarily unfit parents. The fact that parents disagree may even better serve their children's best interests. Furthermore, legal parents often live in separate households, are divorced and remarried, have children with other people, live according to complex custody and visitation arrangements, and still, their children are well protected, taken care of, and loved.
Disagreements are stressful and undoubtedly cause friction and difficulties that parents would rather live without. But difficulties alone are no reason to deny that legal right to a genetic parent who intends to be involved in raising his or her child. Unless one of the three progenitors involved in mtDNA transfers is deemed an unfit parent, they should at least have the potential to all be recognized as legal parents, under the law. Lastly, legislatures can address the question of “how many is too many?” on a state-by-state basis, either by suggesting new numeric maximums or by limiting the ways parentage can be established. This would prevent extended family members from burdening courts with requests to parent relatives' children.
2. Many Legislators Will Refuse To Expand Parentage
Another concern with the proposal to expand statutorily who can seek a legal parentage determination in mtDNA cases is that passing such statutes may be politically unfeasible. Conservative groups will undoubtedly lobby hard against such reform, and conservative legislators will likely assert that expanding parentage is an “attack on the traditional family,”166 which is limited to one woman and one man, who are both genetically related to their offspring. Similar arguments have been made in response to Senate Bill 274 167 and in response to courts recognizing de facto parents.168
Two of these attacks stand out as particularly relevant. The first, a response to Senate Bill 274, reads: “The solution to this tragic case [which prompted S.B. 274] is not to amend the law to allow three parents. The solution is to amend the law to remove the possibility of a person unrelated to the child, either by biology or adoption, being counted as a parent.”169 The second attack, focused on courts recognizing de facto parents in rare circumstances reads similarly:
These changes…are radical. The default rules for establishing legal parenthood—which were nearly universally recognized until now—recognize individuals as parents based on (1) biological parenthood, (2) marriage to a parent, or (3) adoption. These clear laws advance the interests of children to know and be raised by their biological parents whenever possible.…By limiting the number of people who can claim parental authority, the default rules promote stability and consistency for children.170
These arguments against expanding legal parenthood beyond two adults in cases involving same-sex couples and assisted reproduction take on new, incredibly interesting meaning when applied to expanding parentage in cases involving mtDNA transfers. The above-quoted critics would likely be amazed to realize that their conservative arguments to limit parentage to two people who are genetically related to their offspring became the precise arguments for expanding parentage to recognize three parents when mtDNA transfers are utilized. Although these critics are likely to oppose mtDNA transfers altogether, they may still concede that if mtDNA transfers are approved and used in practice, all three genetic parents must be given the legal opportunity to parent their offspring. Although ironic, the typically conservative emphasis on biology and genetics may actually tilt in favor of legislatures passing statutes to expand legal parentage in cases involving mtDNA transfers, as opposed to generating the same controversy that clouds most same-sex marriage and same-sex adoption debates.
3. The 0.01%
Lastly, a recent article describing Parliament's discussions of mtDNA transfers in the United Kingdom suggests that perhaps “the addition of a third party's mitochondria [is not] significant enough to bring about a shift in legal policy.…”171 After all, mtDNA makes up an incredibly small portion of an embryo's entire genome.172 The ultimate question is whether all genetic contributions are equally significant for the purposes of defining legal parentage and social identity.173 If mtDNA is deemed “immaterial” for the purpose of defining legal parentage, then what rights, if any, would a woman who contributed mtDNA have? She apparently would no longer hold the status of a “traditional” egg donor, but the contribution of mitochondria is not analogous to a tissue or organ donor either.174 What if the mtDNA “donor” also gestates the child? What if she is married to the provider of nuclear NDA? Then, does the contribution of mtDNA weigh in her favor to any extent, or is she treated by law as a gestational carrier who is genetically unrelated to the child?
To fully explore the answers to these questions would exceed the scope of this article, but these questions are critical for states to consider. Although defining the role of known mitochondrial “donors” is a key issue that should be addressed in any legislation that expands parentage alongside the growth of mtDNA transfers, the issue is not inherently a reason to avoid expanding parentage.175 Genetic kinship has played an important role in defining legal parentage, and to fully exclude mtDNA contributors from seeking parental rights because of their “lesser” contribution seems to deny the fact that their contribution was originally accepted specifically because of its powerful ability to prevent the inheritance of mitochondrial disease.176 Mitochondrial DNA is also passed down from one generation to the next, through female offspring, which further highlights its small-but-mighty role.177
C. Why Statutory Expansion of Legal Parentage, in Cases Involving mtDNA Transfers, Is the Best Solution
Winston Churchill wisely noted that democracy is the worst form of government except for all the rest.178 Similarly, expanding legal parentage to allow more than two legal parents per child is perhaps the worst legal solution in mtDNA transfer cases, except for all the rest. Consider the other options in relation to the hypothetical scenario introduced in the introduction to this article.179 If states do not enact statutes that mirror Senate Bill 274 or the Family Law Act, which of the adults in the scenario would be legally cut out of their daughter's life? Either Liz and Samantha could be deemed legal parents (cutting out Jake, who contributed sperm under the impression that he would be an involved father); Liz and Jake could be deemed legal parents (cutting out Samantha, who contributed healthy mtDNA to produce a baby with her wife, under the impression that she would be an involved mother); or, especially if Samantha gestates the embryo, Samantha and Jake could be deemed legal parents (cutting out Liz, who provided nuclear DNA under the impression that she would be as involved as her wife and the child's biological father). None of these solutions is appropriate, where Liz, Samantha, and Jake are all fit parents who contributed genetic material with the intent to co-parent their daughter.
Without state statutes redefining legal parentage to allow more than two legal parents under such circumstances, courts will be forced to try to fit Liz, Samantha, and Jake into a two-parent model that has been outpaced by geneticists and ART. Courts should not be forced to grant orders allowing three legal parents without the support of the law. Not only do parents deserve the certainty that revised state statutes would provide, but also, it is specifically the legislature's role to create the law, and the judiciary's role to enforce it.
Conclusion
Despite the time-consuming and challenging process that legislatures will face to reform or create new parentage statutes, it is necessary that states allow three parents to be recognized per child, in appropriate cases, before mtDNA transfers become available. Mitochondrial DNA transfers offer a powerful genetic tool that allows women to produce children who they are genetically related to, while preventing their inheritance of mitochondrial diseases. Once clinical trials begin, though, it is imperative that legislation exists to provide for children's best interests and parents' well-being.
If the implementation of mtDNA transfers outpaces legislation recognizing three parents, judges will be forced to make difficult and potentially contradictory decisions regarding three adults, all of whom are genetically related to the same child, and all of whom wish to exercise their legal right to parent that child. Legislatures must act now to provide clarity, uniformity, and security to benefit judges, parents, and offspring who will be impacted by mtDNA transfers in the near future. State legislatures have the opportunity to create laws that shape ART and genetic modification, and to avoid scrambling later to catch up with innovation. While states will vary in deciding how limited or expansive to make new legal parentage laws, one thing is clear: Expansion is necessary. When mtDNA transfers make it possible for three adults to create a child who embodies DNA from each of them, it is only appropriate that they all be given the legal opportunity to share in the privileges and obligations associated with legal parentage.