The Singapore Supreme Court has ruled that parents should be able to have children with their genes
A mishap has occurred. The couple had in-vitro fertilization (IVF) at Thomson Medical Centre in Singapore. The procedure was successful, and the mother delivered a healthy girl in 2010 (her second IVF child).
The parents were delighted to discover that their daughter was markedly different, both in terms of hair and skin color, from their firstborn.
A genetic test revealed that the child’s only relation was to his mother and not her husband. Thomson Medical confirmed that a mistake was made. Instead of using the husband’s sperm to inseminate the mother’s eggs, anonymous donors had been accidentally used.
The couple filed a lawsuit against Thomson Medical for damages, including upkeep of the child until the age of 21. The case was heard in several courts before reaching the Supreme Court on March 2, which rendered a final decision.
Maintenance and genetic affinity
The court rejected the couple’s request for maintenance costs, as it would lead to a pernicious result in which the birth of the child would be viewed as a mistake or loss by the parents.
Parents are the ones who raise the child. A monetary award would send the perverse message that the child is not valued and that her existence requires monetary compensation.
As we move into the genomic age, it is important to recognize the importance of genetic affinity. Michael Dalder/Reuters
Many courts have refused to maintain claims for “wrongful birth.” These claims are usually made by parents who have a child following a botched voluntary sterilization operation.
This was the basis for Andrews V Keltz, a New York State Supreme Court case, “wrongful fertilization” involving a sperm mixture.
The Supreme Court of Singapore was not happy with the outcome. The court felt that the couple suffered a serious injury, which was not covered by common law.
The court then created a new category of losses – genetic affinity. The court ruled that parents had a strong desire to be genetically related to their children and that Thomson Medical violated that interest.
In the end, ironically, the court set the award to compensate for the loss of genetic affinity as 30% of the upkeep costs of the couple. It wasn’t because the cost of upkeep was a financial loss that needed to be compensated but because there was no other way to determine the value of genetic compatibility.
A portion of the cost was less arbitrarily awarded than a total award. It may also raise concerns that genetic affinity is more important for wealthy parents who can afford higher maintenance costs than poorer parents.
Genetic affinity: Its value
The case also raises the fundamental question of whether genetic affinity has any real value. The court relied in part on an obscure law review article written by New York University professor Fred Norton. He argues in the article that “parents are interested in having children who share their symbolically identifying characteristics”.
Norton’s argument is flawed because it only goes to the surface. He emphasizes traits such as appearance to support the interest in genetic compatibility. This suggests that the damage in this case is not the misplaced orphan sperm but certain superficial characteristics of the misplaced orphan sperm.
In ACB v Thomson Medical, the couple was of Chinese and German descent, but the genetic father had Indian heritage. Would there have been any hereditary loss if the genetic father – by accident – had also been of German or Chinese origin (or both)?
Norton’s argument does not support this. There’s still something disturbing about it. Can the value of a family relationship be reduced to superficial traits or appearances?
A morally sound basis for genetic affinity is that parents would want to have a child who has half of the DNA from each parent. Katytresedder/Flickr CC-BY-NC-ND
It would be much more important to have a moral foundation for genetic affinity that goes deeper. Genetic association would not be about looks; it is about choosing to create children by mixing the mother’s eggs with that the father’s. This will produce a child who has half of each parent’s DNA.
These biological connections are highly valued by society and individuals. For example, genetic affinity is more important than appearance when determining a parent’s responsibility to pay child maintenance. Men who suspect that their wives are cheating on their care deeply if their children are really theirs.
In ACB v Thomson Medical, the court has supported this deeper value in various ways, and when it does, it is very convincing.
But it’s important to remember that genetic affinity does not represent an absolute. Relationships of adoption parenting should be celebrated, not devalued. Adoption’s value is derived in part from the fact that it is a consensual process.
Parents may have suffered significant harm when they are denied the genetic affinity of their child, as was the case in this case.
The question remains whether other jurisdictions recognize the importance of genetic affinity. The judgment comes at a fascinating time in human history. As we gain unprecedented access to our genetic code, interesting ethical questions arise.
Does a woman with a mitochondrial disorder have the right to ” Three-parent IVF“, for example, to ensure genetic compatibility with a healthy baby?
Does it mean that the genetic affinity between parents and their children is lost if we use CRISPR-cas9 to edit embryonic genes? Is it possible to change genetic association by using such editing so that a child’s characteristics are more similar to one parent than the other?
As science progresses, these questions will become even more urgent. The concept of genetic affinity could provide a lens to view them.