Genetic ties and genetic mixups.

In a recent case in Great Britain, a couple described as “white” underwent in vitro fertilisation and gave birth to twins described as “black”. In the sense of a fair adjudication of this particular case, serving justice requires a thick description and a sensitive understanding of the relevant facts. We have only a few facts, but they may be sufficient to serve justice in this first sense. We are told that the couple wants to keep the twins. We are told further that British law holds that the woman giving birth is to be regarded as the legal mother (although the father’s paternity is not conclusively established by the fact of his marriage to the babies’ mother). Finally, we are told that DNA testing has established that the gestational mother is also the genetic mother of these infants. Her husband, whose sperm were supposed to be used to fertilise his wife’s eggs, is not the genetic father. A black couple was also undergoing IVF at the same clinic; it may be that this man’s sperm were used by mistake. We know enough to reach a defensible decision in the case. The couple caring for these children has contributed a half share of the children’s genes, and the woman was also the gestational mother, so they have at least an equal argument from biology. Their intention was to have these children and they also wish to raise them; they went through the rigours of IVF, and are willing to take on the responsibility of parenthood. Since the children were born, furthermore, they have shouldered the hard work of parenthood. We don’t know their particular circumstances; perhaps they’ve had help from family or others; but in all likelihood they’ve had an ample share of sleep deprived nights, soiled nappies, and exhausted days. Unless other dramatic facts emerged to reverse our perceptions of the case, it appears that justice is served by allowing the babies to stay with this couple. But then there is Justice. In its broad sense, Justice requires a fair set of laws, institutions, and practices on which people can rely and that can be used both to guide public policy and to resolve disputes. The case at hand is most troubling for the challenges to Justice it reveals. Two difficulties stand out. First is the upheaval in traditional ideas and practices for assigning parenthood caused by assisted reproductive technologies (ARTs). Lying close beneath the surface of this disturbance are our understandings of the possible meanings of parenthood. Second is the unsettling suggestion that practices in infertility clinics may not be as scrupulous and trustworthy as we would like to believe.