Perry-Rogers v. Fasano
276 A.D.2d 67, 715 N.Y.S.2d 19 (2000)
Rule of Law:
A gestational mother, impregnated with another couple's embryo due to a clinic error and aware of the mistake prenatally, lacks standing under New York law to seek visitation with the child against the genetic parents' wishes, especially when a prompt correction of the error was possible.
Facts:
- In April 1998, Deborah Perry-Rogers and Robert Rogers began an in vitro fertilization and embryo transfer program with the In Vitro Fertility Center of New York.
- Embryos consisting entirely of the Rogerses' genetic material were mistakenly implanted into the uterus of Donna Fasano, along with embryos from Ms. Fasano and her husband's genetic material.
- On May 28, 1998, both the Rogerses and Fasanos were notified of the embryo implantation mistake.
- The Fasanos were unresponsive to the Rogerses’ efforts to contact them after being informed of the mix-up.
- On December 29, 1998, Donna Fasano gave birth to two male infants; one, Akeil Richard Rogers, was subsequently confirmed by tests to be the Rogerses' biological son.
Procedural Posture:
- On March 12, 1999, Deborah Perry-Rogers and Robert Rogers (the Rogerses) commenced an action in New York Supreme Court (the trial court) against Donna Fasano and John Fasano (the Fasanos), as well as the fertility clinic and its doctors, seeking a declaratory judgment concerning Akeil's rights, obligations, and relationships.
- On April 13, 1999, DNA test results established the Rogerses as Akeil's genetic parents.
- On April 29, 1999, the Rogerses executed a written agreement with the Fasanos, which entitled the Fasanos to future visitation with Akeil, as a condition to gain custody.
- On May 11, 1999, counsel for both parties signed a stipulation discontinuing with prejudice the plenary action as against the Fasanos.
- Despite the discontinuance, on May 25, 1999, the Rogerses initiated a petition for a declaratory judgment against the Fasanos (using the same index number of the discontinued action), seeking sole and exclusive custody of Akeil and amendment of his birth certificate, without mentioning the April 29, 1999 visitation agreement.
- On June 7, 1999, the Supreme Court granted the Rogerses' application without opposition.
- The Fasanos then sought to vacate the June 7, 1999 decision, arguing the Rogerses had failed to inform the court of the visitation agreement, or proposed a counterorder acknowledging it.
- On July 16, 1999, the Supreme Court signed the Rogerses’ proposed order, which made no mention of the visitation agreement, but at the same time, the court “So Ordered” those paragraphs in the April 29, 1999 agreement which provided for visitation by the Fasanos.
- On January 14, 2000, the Supreme Court granted the Fasanos visitation with Akeil every other weekend.
- The Rogerses then challenged the January 14, 2000 visitation order on appeal, and the Fasanos cross-appealed from the order of July 16, 1999, contending the court lacked jurisdiction as well as statutory authority to award custody.
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Issue:
Does a gestational mother, who was mistakenly implanted with another couple's embryo and was aware of the error before the child's birth, have standing under New York law to seek court-ordered visitation with the child against the genetic parents' wishes?
Opinions:
Majority - Saxe, J.
No, a gestational mother in these specific circumstances does not have standing to seek visitation with a child who is genetically unrelated to her and was implanted by mistake. The court held that the Fasanos lacked standing under Domestic Relations Law § 70 to seek visitation as the child’s parents. The court recognized that while a gestational mother may possess enforceable rights in some circumstances, here, the mistaken implantation and the Fasanos' knowledge of the error before birth meant their nominal parenthood should have been corrected promptly, akin to a hospital mix-up of newborns. Allowing the Fasanos to claim parental status would permit them to benefit from their failure to act timely to correct the error and establish a bond based on that inaction. The court distinguished this case from others where a gestational mother might have stronger claims, emphasizing that the Fasanos' relationship was a 'mistake to be corrected at soon as possible, before the development of a parental relationship.' The court also found no statutory basis for the Fasanos' child, Vincent, to seek visitation as a sibling under Domestic Relations Law § 71, nor did the Fasanos' visitation agreement confer standing. Furthermore, the court applied the strong policy considerations from cases like Matter of Alison D. v Virginia M. and Matter of Ronald FF. v Cindy GG., which grant biological or adoptive parents broad rights to exclude visitation by 'biological strangers,' even those who have nurtured the child. The court determined that a 'best interests' hearing was not necessary in this case because the key facts (genetic parentage, mistaken implantation, prenatal knowledge of error, and the Fasanos' failure to act timely) were clearly established and negated the Fasanos' standing as a matter of law. The court rejected the application of equitable estoppel as well, as the Fasanos created the bond through their own inaction.
Analysis:
This case provides crucial guidance in the complex area of parental rights arising from assisted reproductive technologies, particularly in instances of medical error. It clarifies that while gestational mothers are not automatically 'genetic strangers' without rights, their claim to parental status, especially for visitation, is severely limited when the conception was entirely accidental and known prenatally. The decision prioritizes genetic parentage and the 'intent to procreate' (as seen in Johnson v Calvert) in cases of clear error, limiting the ability of parties to exploit mistakes to establish parental bonds or rights. It reinforces the broad discretion of genetic parents to control visitation and emphasizes the importance of prompt action to correct errors in reproductive technology scenarios. This ruling will likely discourage attempts by gestational carriers in accidental situations from asserting long-term parental or visitation rights, steering outcomes towards the genetic parents' intentions.
