Part 3 of a 3-Part Series on 3-Parent Babies:
Continuing my discussion on mitochondrial transfer, i.e., “three-parent babies,” there are two very interesting and under-appreciated issues to consider: How would U.S. approval of mitochondrial transfer impact parental rights and U.S. citizenship? While most of the current debate surrounding this treatment has revolved around ethical considerations, the laws regarding both parental rights and U.S. citizenship would be greatly impacted by the approval of mitochondrial transfer.
Mitochondrial transfer creates three genetic parents, a novel concept that not only raises many questions, it also presents many complex legal issues that courts will be forced to reconcile (e.g., Should the donor parent have parental rights?; Is a “donor parent contract” – similar to a surrogacy contract – necessary?; etc.). The complicated issues courts will be faced with are due, in part, to the fact that the reasoning and method in which courts determine parental rights varies greatly from state to state.
To begin, there are several ways to determine paternity, including genetic testing, consent by being named on the birth certificate, and treatment of the child as one’s own. As such, the U.S. seems to be a veritable smorgasbord of parental rights, with states pulling from these methods in various ways. To further complicate matters, some states determine parental rights based biological/genetic relation to the child while also refusing to recognize the parental rights of same-sex couples, such as a lesbian couple. Thus, if a lesbian couple were to utilize mitochondrial transfer in order to have a child born with genetic ties to both women, the women would have legal rights to the child under the theory of parentage by genetics. Courts would be hard-pressed to deny both women legal parentage to such a child.
Under the Constitution of the United States, a child born in the U.S., or one of its territories, is considered a citizen at birth. However, children born abroad may also be deemed a U.S. citizen if they meet certain conditions: the child’s parents were married at the same time of the birth, one of the parents was a U.S. citizen when the child was born, the citizen parent lived in the U.S. for at least five years before the child’s birth, and at least two of those five years were after the citizen parent’s fourteenth birthday.
There are unique rules, however, for children born via IVF treatment. In such cases, the egg and sperm donors are what determine the citizenship of the child – what matters is “the biological material, not the actual parent.” Thus, the implication is that even though mitochondrial DNA accounts for only a fraction of a child’s total DNA, this minor genetic tie is enough that a three-parent baby born in the UK, where mitochondrial transfer has recently been approved, could conceivably be eligible for U.S. citizenship if the mitochondrial donor was a U.S. citizen.
Though mitochondrial transfer would have a vast impact on our legal system, making unclear both parental rights and U.S. citizenship, it is nothing that both our court system and Congress could not handle. For example, the U.S. could create a uniform national policy regarding mitochondrial transfer. However, some may construe this as an encroachment on states’ rights to govern activities within the state; therefore, an alternative method to infringing on states’ rights would be to allow each state to incorporate mitochondrial transfer into their existing laws – similar to how the U.S. dealt with traditional IVF treatment and surrogacy.
With regard to U.S. citizenship, the U.S. Constitution reserves the right of Congress to establish a uniform rule of naturalization. As such, an act of Congress could amend the Immigration and Nationality Act in order to reflect the medical advancement of mitochondrial transfer.
Medical advancements, such as IVF and mitochondrial transfer, have unintentional impacts on our legal system, but careful planning and preparation allows us to avoid any potential unexpected issues.