By Kylie Orme for BiolawToday.org
In September, news broke regarding the birth of the first baby conceived using three parents’ DNA. The baby was born on April 6, 2016 after his Jordanian parents travelled to Mexico where American fertility specialists performed a highly contentious conception procedure that involved the father’s sperm, the mother’s egg, and an additional donor’s mitochondrial DNA.
Why would anyone go to such lengths? To save their future child’s life. Although she is healthy, the baby’s mother carries the gene for the fatal Leigh syndrome—a rare, inherited neurometabolic disorder that affects the central nervous system.[1] The syndrome causes loss of mental and physical movements and typically results in death within three years.[2] The couple lost their first two children to Leigh syndrome, so they sought out Dr. John Zhang and his team in New York to try to beat the odds.
The controversial mitochondrial transfer, also known as the “three-parent” technique, comes in two forms. The first is a method that has been approved in the UK, called “pronuclear transfer.” This method requires fertilizing both the mother’s egg and a donor egg with the father’s sperm, and “before the fertilised eggs start dividing into early-stage embryos, each nucleus is removed. The nucleus from the donor’s fertilised egg is discarded and replaced by that from the mother’s fertilised egg.”[3]
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This method was not an option for Dr. Zhang’s patients based on their religious objection to the destruction of the embryos. Thus, Dr. Zhang employed a second method—the spindle nuclear transfer. The spindle nuclear transfer requires removing the nucleus from the mother’s egg and inserting it into the donor egg that has had its own nucleus removed. Only then is the resulting egg fertilized with the father’s sperm.
The couple and Dr. Zhang travelled to Mexico in order to complete the spindle nuclear transfer. Dr. Zhang, who works at the New Hope Fertility Center in New York, stated that he went to Mexico to perform the procedure because “there are no rules,” and when pressed about the ethics of his decision, stated “[t]o save lives is the ethical thing to do.”[4]
This case raises an important ethical concern regarding who has parental rights to the child. While headlines would suggest that there are technically “three parents,” it is not clear that the mitochondrial donor is actually a progenitor any more than a transplant donor is. Mitochondria do not participate in fertilization—they are replicated rather than procreated. This means that mitochondrial cells copy, but don’t actually produce something new, whereas nuclear DNA creates new life. In other words, the nuclear DNA would be inherited from the traditional mother and father, while only the mitochondrial DNA would be derived from the donor. Therefore, donating mitochondrial cells is more akin to donating a kidney or bone marrow—only to be used for one purpose not integral to procreation.[5]
While mitochondrial donor rights are an issue of first impression, assigning parent status in general is not a new issue to the courts. For this purpose, the courts have identified three different relationships that can make someone the parent of a child:
“(1) An ‘intended parent’ is a parent who intended to bring a child into the world to raise as his or her own; (2) a ‘genetic parent’ is a person who shares DNA with the child; and (3) the ‘biological parent’ (also called the “gestational parent” or “birth mother”) is the woman who gave birth to the child. Although the same two people used to encompass all three relationships, assisted reproductive technologies have enabled the division of these relationships among multiple people.”[6]
The three-parent technique blurs the lines between intended, genetic, and biological relationships. In the present case with Dr. Zhang’s patients, it is clear to see that the biological mother and father are also the intended and nuclear genetic parents. It is the mitochondrial donor that presents an ambiguous relationship. She is not the “intended” parent, but is potentially one of three genetic parents—a situation unlike any other in history. Moreover, the donor’s relationship is further distorted, since she does not provide “necessary” nuclear DNA.
Traditionally in the United States, most parentage cases are resolved in favor of the two, intended parents. However, other jurisdictions have been more open to recognizing three, legal parents. Both New Zealand and Canada have made strides in allowing third parents to be legally recognized.[7] “These instances illustrate the flexibility that may be exercised in some jurisdictions.”[8] Therefore, policy surrounding three-parent children could develop in either direction, likely paralleling the social politicking associated with it.
Future policy may suggest that the mitochondrial donor has legal rights, should they pursue legal status as a parent. Allowing the mitochondrial donor parental rights may open the door for evolved laws regarding parentage moving forward. For example, under a three-parent procedure, both women in a lesbian couple could have genetic ties to the child—one providing nuclear DNA and the other, mitochondrial DNA. Therefore, it may be increasingly difficult for such states to deny two women legal parentage of a child to whom they both have genetic connections.[9]
The future of this field is unclear. Will these types of procedures create a new type of family and along with it, new laws? It is likely that they will—but we don’t know direction they will steer us. As the biological creation of families evolves, laws and definitions will have to be flexible to adapt to those changing circumstances—”a crucial feature of modern doctrine in an era where technology changes at increasingly rapid speeds.”[10]
Therefore, as technology evolves, we must too—whether that is changing our social framework, implementing new laws, or advancing techniques we never thought possible. While it is unclear exactly how the three-parent technique, and others like it, will fit into modern medicine and law moving forward, one thing is clear: we must, at the very least, continue to be keep an open mind as we apply existing frameworks to unprecedented situations. The potential for medical innovation is limitless and with it, we may soon be able to improve, expand, and evolve healthcare.
Kylie Orme is currently a third-year law student at the University of Utah S.J. Quinney College of Law, where she is a member of the Utah Law Review. She graduated from Brigham Young University in 2012 with a B.A. in Advertising. Kylie plans to pursue a career in health law, specifically working with the law as applicable to innovative biotechnology. During her 1L and 2L summers, she clerked at Snow, Christensen & Martineau. In her spare time, she enjoys woodworking, traveling the world with her husband, and reading fiction novels.
[1] National Institute of Health, U.S. National Library of Medicine, https://ghr.nlm.nih.gov/condition/leigh-syndrome (last updated Oct. 9, 2016, 11:06 PM).
[2] Id.
[3] Jessica Hamzelou, Exclusive World’s First Baby Born With New 3 Parent Technique, New Scientist (Sept. 27, 2016), available at http://bit.ly/2dgZcSe.
[4] Ian Sample, World’s First Baby Born Using DNA From Three Parents, The Guardian (Oct. 9, 2016), available at https://www.theguardian.com/science/2016/sep/27/worlds-first-baby-born-using-dna-from-three-parents.
[5] Caroline Jones, Relatively (Im)material: mtDNA and Genetic Relatedness in Law and Policy, 9 Life Sci. Soc. Pol. 4 (2013).
[6] Amy B. Leiser, Parentage Dispute in the Age of Mitochondrial Replacement Therapy, 104 Geo. L.J. 413 (2016).
[7] Id.
[8] Id.
[9] Padmini Cheruvu, Three-Parent Ivf and Its Effect on Parental Rights, 6 Hastings Sci. & Tech. L.J. 73 (2014).
[10] Id.