TBA Law Blog

Posted by: Marlene Moses & Manuel Russ on Jan 1, 2014

Journal Issue Date: Jan 2014

Journal Name: January 2014 - Vol. 50, No. 1

The issues surrounding same-sex marriage, surrogacy, second-parent adoptions, parental rights stemming from in vitro-fertilization and other forms of assisted reproductive technology (ART) and how these issues translate from state to state within the U.S. are hot-button ones in the field of Family Law. The science that facilitates some of these possibilities is advancing daily, and the capability to provide the chance for children to couples, both to same-sex and heterosexual partners, that never existed before is taking the area of Family Law into truly uncharted waters. Another issue, the subject of this article, that will further muddy those waters, is the possibility of a child having three parents based on DNA contributions from at least three distinct people to form the embryo. In order to understand the state of the law in Tennessee and elsewhere, as well as the science, in layman’s terms, that makes this actually possible, a short overview of both is required.

The scientific arenas of genetic testing as well as insemination and fertilization have been growing for years at an accelerated speed. It is now possible to tell, from the potential parents of a child, a great deal of information about the child to be. One item that can be determined is a child’s proclivity to develop mitochondrial disease. The mitochondria are sub-parts of human cells that process glucose into energy. In simple terms, the mitochondria are the battery packs of the cell. Mitochondrial disease occurs in approximately 1 in 4,000 births in the United States and prevents the mitochondria from properly functioning. This disease usually disrupts organs in the body that are major users of energy, like the heart, the brain, the kidneys and the liver. If a person has mitochondrial disease, it may cause damage to any of these organs or others and lead to a plethora of health problems throughout that person’s lifetime.

Scientists have hypothesized and conducted experiments to prove that the mitochondrial DNA1 that each person possesses, if determined to be deficient through screening, can be substituted with that of another, healthy mtDNA donor. The current technology has been tested with monkeys successfully and allows for the replacement of the deficient mtDNA with healthy mtDNA. This technology has been replicated with human eggs to create embryos free of mitochondrial disease in the child, with at least one living as long as eight days in a laboratory. The complicated process actually involves implanting mtDNA from a healthy egg into the core of another egg where the deficient mtDNA has been removed. Consequently, from a potential legal perspective, the future child could have mitochondria from one person as well as DNA components from a man and a woman all in its makeup.

Where then does this leave the legal debate and how does this narrow issue fit into the larger debate about donors, surrogacy, intended parents and the rights as well as obligations of parents? As most people are aware, the landscape of the American family has changed drastically in recent years. The advent of effective assisted reproductive technology has opened the possibilities for families of every configuration, including those that would have been previously unable, in the biological sense, to create their own children. The legal community has grappled over the course of the past 20 years with an effective way to keep pace with the scientific possibilities that necessarily create the practical realities of non-traditional families. The possibility of a couple, either same-sex or heterosexual, to use a surrogate in order to create children from their own DNA has raised serious questions about the law’s traditional assumptions regarding who is a legal parent.

A brief set of definitions commonly used in surrogacy discussions is useful here. Intended parents is the term used to define the couple that is the intended destination, legally and practically, of the child. Also, there are two common types of surrogacy: traditional surrogacy wherein the woman carrying the child is impregnated with the sperm of the father, but the intended mother has no biological contribution and gestational surrogacy where both of the intended parents’ DNA is contributed by use of an inseminated egg that is then implanted in the surrogate. On occasion, there are also gametes donors, generally someone who contributes sperm anonymously and that DNA is later used for insemination with or without a surrogate for the intended parents. Gametes donors generally do not become involved in the lives of the children that their DNA is used to produce, but there has been debate surrounding the subsequent right of a child to later find the gametes donor.

Different jurisdictions had these issues surrounding surrogacy in a number of ways and employ different methods of insuring that the rights of all of these parties are observed. Some jurisdictions have taken the approach that the intended parents should hold all parental rights regardless of the biological connection or lack thereof, to the child created. Recently, this logic has been extended to same-sex couples in those same jurisdictions. Other jurisdictions have maintained a more traditional approach that the genetic parents of a child will also be the legal parents regardless of the wishes of the intended parents absent some sort of waiver of the rights.

Tennessee in particular has adopted a middle-ground approach that not only considers the procreative intent of the parties, but also factors in who the birth parent was and whether there are any other parties who have claims to parentage of any kind.2 Since there are clearly still disputes between the jurisdictions and simply being the intended parents is not necessarily a guarantee of being the legal parent of a child, the implication that the rights of biological contributors of DNA are viable regardless of pre-conception and pre-birth intent raises more questions regarding the donation of mtDNA.

The discussion of surrogacy above is only an analogy to the discussion of mtDNA. When a surrogate is used with same-sex couples, and in some instances with heterosexual couples, there will be at least one parent who does not contribute to the child’s DNA or to its gestation. However, the use of an mtDNA donor would not prohibit the use of DNA from both a potential mother and father and, typically, a child would be carried by the mother contributing her DNA, not a surrogate. The use of substitute mtDNA is only for a portion of the cell, not a replacement for the entire sperm or egg. Therefore, the legal arguments alter yet again. What rights, if any, does a person donating only a portion of the DNA that composes a child have? Will this issue be handled on a jurisdiction-by-jurisdiction basis as the issue of surrogacy has been, or will the contribution of mtDNA be considered a lesser contribution than that of using the womb for gestation or actual egg or sperm donation has been?

The United Kingdom has attempted to address the issues surrounding the use of mtDNA donors and what parental rights, if any, those persons might possess. In the European legal community, standards have been adopted regarding the legal implications of tissue and cell donation. These standards suggest that, in most instances, the donor would be anonymous and the recipient of the tissue or cells would have few, if any rights to knowledge of the identity of the donor, or anything about the person. The corollary being, of course, that by donating tissue or cells, this does not create a right for the donor to have information about the recipient or control over anything regarding their donation. In 2012 in the United Kingdom, based on a lengthy debate about the status of potential mtDNA donors, the conclusion was reached that mtDNA donors should be considered akin to tissue donors and not that of gametes donors, giving them no significant rights as parents to the unborn child despite the potential of being the “third” parent in the creation of the child.

Which direction will the United States go if and when mitochondrial DNA donation becomes a reality? Obviously, this debate, and its place in the larger area of assisted reproduction, creates more questions than it immediately answers. The work of lawyers and courts in the past 20 years has laid the groundwork for achieving workable and fair solutions to the most personal of legal issues such as, who is the legal parent of a child.


1. This is often noted in the literature with the acronym mtDNA.
2. In re C.K.G. 173 S.W.3d 714 (Tenn. 2005).

Marlene Moses MARLENE ESKIND MOSES is the principal and manager of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is currently serving as a vice president of the International Academy of Matrimonial Lawyers. The Tennessee Commission on Continuing Legal & Specialization has designated Moses as a Family Law Specialist; she is board certified as a Family Law Trial Specialist. MANUEL BENJAMIN RUSS earned a bachelor of arts from Johns Hopkins University, a master of arts from University College London, and a law degree from the Emory University School of Law. He is in private practice in Nashville focusing primarily on criminal defense.