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A Way of Looking at the Dalla Corte Case

Published online by Cambridge University Press:  01 January 2021

Melinda A. Roberts
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When her baby was born last June, Rossana Dalla Corte, age sixty-two, was thought to be the oldest woman ever to have given birth. Her pregnancy was achieved at a private fertility clinic in Italy, the same clinic that treated “Jennifer F.,” a London woman who, on Christmas day, 1993, at the age of fifty-nine, gave birth to twins. The reproductive procedure, likely to become more common during the next few years, has received intense scrutiny from health officials in Great Britain, France, and Italy. Moral questions concerning that procedure already have been taken up by the popular press in the United States. Such questions can be expected to take on a new urgency as the United States considers reshaping its health care system and, specifically, the circumstances under which coverage for infertility treatment will be provided.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 22 , Issue 4 , Winter 1994 , pp. 339 - 342
Copyright
Copyright © American Society of Law, Medicine and Ethics 1994

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References

See, generally, Riding, Alan, “French Government Proposes Ban on Pregnancies After Menopause,” New York Times, Jan. 5, 1994, sec. A6.Google Scholar
See Schmidt, William E., “Birth to 59-Year-Old Briton Raises Ethical Storm,” New York Times, Dec. 29, 1993, sec. Al.Google Scholar
See Carlson, Margaret, “Old Enough to be Your Mother,” Time, Jan. 10, 1994, p. 41.Google Scholar
More precisely, harm imposed on a child is justified, if no alternative course of action could practically have been taken, at any time, that would have placed the child in a circumstance more desirable (from the child's point of view) than the child's actual circumstance. This principle is, of course, intended to state a sufficient, not a necessary, condition for justifying a harm. In addition, this principle would sometimes justify harm in cases in which the child has been placed in a circumstance that is less than his or her best logically possible circumstance. For example, the best circumstance which is logically possible may be one that existing medical technology is not capable of bringing about and that therefore is not practically possible. Parfit, among others, has reflected on kindred exculpatory principles. See, for example, Parfit, Derek, Reasons and Persons (Oxford: Clarendon Press, 1984), pp. 352–79.Google Scholar
Such a principle may also be at work when courts reject the claim of wrongful life on the grounds that damage cannot rationally be assessed or that the facts alleged by the plaintiffs do not represent a legally cognizable injury. See, for example, Turpin v. Sortini, 643 P.2d 954, 961–63 (Cal. 1982).Google Scholar
Parfit observes how very whimsical is the statement “It is always fascinating to speculate on who we would have been if our parents had married other people.” See Parfit, supra note 4, at 351 (Raverat, citing G., Period Piece (London: Faber and Faber, 1952)).Google Scholar
An interesting issue is raised by the fact that it is Chaplin's begetting and raising the child, not his simply begetting the child, that ultimately leads to the child's being harmed. Thus Chaplin might have sired the child and not raised the child—instead, he might have given the child up for adoption by a younger man. However, presumably Chaplin wants the child and will otherwise satisfy his obligations toward the child. If this is correct, then—while I will not attempt to settle the issue here—it is far from clear to me that putting the child up for adoption really would improve the child's situation. Nonetheless, if it did, then (EP) would not justify Chaplin's act of begetting and raising the child. (Of course, in this event some other exculpatory principle may operate to justify his raising the child; such a principle, which appeals to the genetic link, is discussed toward the end of this paper.) In any event, (EP) would seem to justify the simple begetting of the child: this child's coming into existence to begin with depends, after all, on his or her having been sired by Chaplin.Google Scholar
Parfit, , supra note 4, at 358–59. The issue mentioned in note 7 also arises in connection with the fourteen-year-old-girl case.Google Scholar
Similarly, (EP) fails to justify a court's enforcing a contract for surrogacy motherhood of the sort at issue in the Baby M decision. See In re Baby M, 109 N.J. 396, 537 A.2d 1277 (1988). Let us suppose that, at least in some cases, enforcing such a contract in accordance with its terms and regardless of the surrogacy child's interests harms the child. By the time the court addresses the issue of whether the contract should be enforced, the surrogacy child's existence is already firmly established; the child's existence does not at that time in any sense depend on the court's deciding the enforcement issue one way or another and thus does not depend on the child's being harmed. Since the court can do better for such a child than simply blindly enforcing the contract in accordance with its terms and regardless of the child's interests, any harm resulting from enforcement would not be justified by appeal to (EP). (See, generally, Roberts, Melinda A., “Good Intentions and a Great Divide: Having Babies by Intending Them,” Law and Philosophy, 12 (1993): 287–317.) (EP) also would fail to justify harm (if any) imposed on the offspring produced by the technologies that involve the cloning of human embryos. (See Roberts, Melinda A., “Human Cloning: A Question of No Harm Done?,” Journal of Medicine and Philosophy, forthcoming in a special issue on reproductive technology.) One might attempt to justify enforcing arrangements that pertain to surrogacy, human cloning, and other reproductive procedures, including those involved in the Dalla Corte case, by the argument that, since but for the arrangement the child at issue would never have existed to begin with, the surrogacy agreement should be enforced as protective of, or at least consistent with, the child's interests. For a general discussion of the exculpatory principle appealed to here and related exculpatory principles, see Roberts, Melinda A., “Future Persons and Present Duties: When Are Existence-Inducing Acts Wrong?,” Law and Philosophy, forthcoming. As Schuck has observed, this principle–which is, of course, distinct from (EP)–would appear to justify too much (including, for example, preconceptual slavery agreements) and should be rejected. (See Schuck, Peter H., “Some Reflections on Baby M,” Georgetown Law Journal, 76 (1988): 1801, n. 28.)CrossRefGoogle Scholar
The supposition is, in other words, that a scarcity of human embryos available for transplant exists.Google Scholar
Indeed, I see no clear, reasonable approach that altogether deemphasizes this genetic link, even though I would be among the first to acknowledge that the pertinent family law doctrines raise a host of difficulties and badly need evaluation and revision. It is questionable, for example, whether the genetic link between father and daughter suffices to justify taking a two-and-a-half-year-old girl away from the apparently caring adults she loves and trusts. These are, of course, the facts of the “Baby Jessica” case, a detailed summary of which is included in Wendy Anton Fitzgerald, “Maturity, Difference, and Mystery: Children's Perspectives and the Law,” Arizona Law Review, 36, no. 11 (1994): 72–84. An even more troubling case is the “Baby Richard” case, in which a finalized adoption was reopened on the basis of the natural father's claim of parental rights; by the time the Illinois Supreme Court's decision against the adoptive parents was handed down, the child had lived for three and a half years—his entire life—with his adoptive parents. (See In re Baby Janikova, No. 76063, slip op. (Ill. June 16, 1994) (1994 WL 265086).) While no one can doubt that these questions of family and constitutional law are complex, it seems quite clear that—even if we want to accept the importance of the genetic link for choosing among the various possible alternative situations in which a child commences his or her life—we ought to reevaluate whether the genetic link should continue to have a nearly absolute importance after the point at which the child has come to have a significant interest in remaining with a particular individual or couple. Indeed, if we believe that the United States Constitution provides any degree of protection to children whatsoever, it is hard to see why we are not bound to interpret the constitutional “privacy” and “family” rights, which are accorded to natural parents under a number of United States Supreme Court opinions (see, for example, Santosky v. Kramer, 455 U.S. 745, 753 (1982), as balanced by the child's own fundamental interest in remaining with the “parents” he or she reasonably believes to be his or her own. But the Dalla Corte case raises no such difficult issues, since here the genetic link is used to support the claim that the initial transfer of the embryo to Dalla Corte is appropriate.Google Scholar
I assume that the donor of the egg has made and will make no claim of parental rights in the child.Google Scholar
Of course, grounds may exist for denying Dalla Corte's request other than the need to protect the interests of the child, such as, perhaps, the proper allocation of scarce medical resources.Google Scholar
See, for example, the examples mentioned in note 9.Google Scholar
Even this principle, if properly qualified, is one that arguably serves the interests of the children as well as their natural parents.Google Scholar
I want to thank Gerald Barnes, Annette Disselkamp, Ellen Friedman, and Alan McMichael, and particularly the reviewers of this journal, for their many helpful and enlightening comments and suggestions on prior versions of this paper. All remaining errors are, of course, my own.Google Scholar