Our Merrillville child support lawyers learned that The British House of Commons in 2015 legalized a breakthrough fertility procedure aimed at keeping genetically-transmitted diseases from passing to future generations by creating children from the genetic material of three parents rather than two. In April of this year, the first three-parent child created by the new procedure – a healthy boy – was born, but not in Great Britain. The child was born in Mexico to a Jordanian couple with the help of U.S. doctors.
The boy’s mother carries genes for Leigh syndrome, a fatal disorder that is passed to children through the mitochondrial DNA inherited from the mother. The Jordanian couple contacted Dr. John Zhang and his colleagues in New York City at the New Hope Fertility Center. The procedure has not been approved in the United States – and Great Britain is the only nation that has legalized it formally – but Dr. Zhang met the prospective parents in Mexico, where he says “there are no rules.” He is zealous about his work and clients. “To save lives is the ethical thing to do,” Dr. Zhang says.
The science is complicated and controversial. Unhealthy DNA is removed from a human egg cell, replaced with healthy DNA from a second egg cell, and then fertilized with a third parent’s sperm. But what may become even more complicated and controversial over time are the legal questions that will accompany a child with three parents – especially if there is a divorce or a child custody dispute. In Indiana, anyone involved in a contested divorce with children or any child custody dispute should discuss the case first with an experienced Lake County family law attorney. Family law is already complicated, even for children who have “only” two parents.
EXACTLY WHAT IS THIS NEW FERTILITY PROCEDURE?
The new baby’s parents have previously lost two children to Leigh syndrome. The mother carries the genes for Leigh syndrome in her mitochondrial DNA, inside the cell’s mitochondria. While nuclear DNA is inherited from both the father and mother, mitochondrial DNA comes only from the mother. Dr. Zhang and his team used mitochondria from an egg cell taken from a third-party anonymous donor. Most of a person’s twenty thousand or so genes are in the cell’s nucleus. The mitochondria carry only thirty-seven genes. The embryo that was created by Dr. Zhang’s team had the nuclear DNA of its parents and the mitochondrial DNA of the anonymous donor.
The baby boy born in April is not the first child created from three parents, but he is the first using Dr. Zhang’s technique and the first in many years. In the 1990s, seventeen three-parent children were born using a technique called ooplasmic transfer developed by Dr. Jacques Cohen at the Institute for Reproductive Medicine and Science at Saint Barnabas in New Jersey. But two of the fetuses lacked an X chromosome, and one of the mothers miscarried. In response, the Food and Drug Administration (FDA) in 2001 asked fertility clinics in the United States to stop using the ooplasmic transfer method, and they have.
Although the fertility procedure performed in Mexico by John Zhang and his team is legal now in Great Britain, apparently no one there has yet attempted it. Embryologists who want to conduct the procedure in Great Britain must apply for a license and adhere to strict legal and ethical guidelines. Observers believe that the birth in Mexico will now generate renewed interest in the technique in scientific and medical communities around the world. In other words, we can now expect plenty of three-parent children in the future. In the United States, the FDA – which so far has made no determination – would have to approve the procedure.
DO ANY STATE LAWS PROVIDE FOR CHILDREN WITH THREE PARENTS?
If the three-parent procedure is approved by the FDA and eventually becomes available to prospective parents in the United States, it will significantly affect divorce cases and child custody disputes in a variety of ways that no one can now foresee. In the state of California, the law already officially “allows” a child to have more than two legal parents as a result of a proposal that became California law in 2013. That statute was adopted by the state’s lawmakers in response to the increasingly common living arrangement where a same-sex couple is raising a child after one partner had the child with a biological parent of the other sex.
At first glance, the California law is clear and simple: “In cases where a child has more than two parents, the court shall allocate custody and visitation among the parents based on the best interest of the child.” This law – and similar legislation under consideration in a number of other states – simply allows the courts to recognize legally that more than two people may assert parental rights. Nevertheless, three-parent children and the laws that recognize three legal parents will inevitably complicate even further something that is already quite complex – the decisions courts make regarding child custody and child support during and after a divorce.
WHAT ARE SOME OTHER CONCERNS ABOUT GENETIC RESEARCH?
All of us can understand the apprehension of prospective parents who fear passing on a genetic abnormality to their children. Nevertheless, fears also remain about the unanticipated consequences of genetic research. If human beings can be created disease-free, can they also eventually be “customized” genetically? Of course, the ethical controversies will continue. Science-fiction writers and conspiracy theorists will offer frightening scenarios about genetic control and manipulation. But the courts are where real parents, lawyers, and judges will settle the hard legal questions that will emerge regarding three-parent children and child custody.
For a parent, nothing can generate more concern than a child custody battle. Every custody case – and every child – is unique. Any parent divorcing in Indiana should have a Lake County family law attorney provide sound legal advice and fight for the best possible legal and physical child custody agreement for you and your child or children. In the United States, children with three biological parents probably will not be a legal concern for several more years, but lawmakers and judges should prepare now for three-way custody battles and the other kinds of custody disputes that are sure to arise when three people have legal claims and parental rights to a single child.