Blood or womb: who will win the battle for the fetus?

The fight for the fetus of the quarrel crosses sectors and audiences.

There are those who are clear that the baby belongs to her biological parents (if they can be found) while others are hunting for the surrogate mother.

We asked experts to give their opinion on the case, and in return they surprised us when they said that "this is really not the first case"

have a root

10/25/2022

Tuesday, October 25, 2022, 1:54 p.m. Updated: 3:29 p.m.

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On video: Discussion of the embryo exchange case at Assuta Hospital, Rishon Lezion Court of Peace, October 11, 2022 (Yotam Ronan)

This is without a doubt and without exaggeration one of the most exciting stories that happened in Israel in the last decades, and if we thought that the drama in the case of the exchange of embryos in Asuta was great, yesterday's results that showed that the couple who were considered to have the greatest chances of being the biological parents of the embryo are not her parents made the story even more complicated.

Now the Ministry of Health and Assuta are seeking to find the genetic parents of the fetus and for this they will conduct genetic tests on several couples who are moderately likely to be her parents.

In the meantime, apparently, the pregnant mother who is in the ninth month of her pregnancy will already give birth, which makes the chance that the fetus will be taken from her if and when the results are known is low.

In the meantime, as mentioned, dozens of concerned parents are in an impossible situation.

Just today, A, who could potentially be the mother of the fetus, spoke with Golan Yokhpaz and Anat Davidov on 103fm, and shared the difficult feelings since the disclosure of the omission.

"Unfortunately, we are all currently suspicious of this complex situation. We were treated a few days before, according to what was published in the verdicts, the pregnant lady was treated, and so were we. We were there three days before and we are afraid, like all the parents who come for treatments at Assuta Rishon LeZion."

We asked bioethics experts to give their opinion on the complicated case and try to guess what the consequences are for medical procedures such as in vitro fertilization or surrogacy - and also give their opinion with whom should the baby stay?

The case only gets more complicated.

A pregnant woman returns an ultrasound of a baby (Photo: ShutterStock)

"Not the first case"

"First of all, it is important to say that this is not the first case of such confusion. Maybe in the news, yes, in reality, no," clarifies Prof. Yechiel Bar Ilan, an expert in internal medicine and a lecturer in medical ethics at the Tel Aviv University School of Medicine.

"Not every mistake goes to the baby, and not every baby goes to court. There was a specific case where genetic testing was done, but when you evaluate how many such treatments have been done in Israel over the past forty years, it's clear that there are mistakes. There is no system without mistakes."

"Let's take for example the most stringent procedure in the health system, which is a blood transfusion. The procedures are strict, even to the extreme, but mistakes always happen. The expectation that there won't be a mistake is unrealistic. It's like driving a car and being surprised that there's a car accident," clarifies Prof. Bar Ilan and adds Because the public needs to be informed: "You need fertility services, you gave the sperm and egg to a bureaucratic system - there is a chance that something will happen. It is an inherent risk, which must be reduced, of course, like car accidents. But I have not heard a woman being told, 'You are going for treatment and there is a chance that they will take it from you. you the baby'".

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"Cruelty that I can't believe is on the agenda"

"The very thought of taking a child from the mother who gave birth to him is a sick evil in our society. It is the demeaning and exploitation of women, especially in the sexual field of fertility"

In Prof. Bar Ilan's personal opinion, the girl should be left with the mother who gave birth to her.

"The mother holding her for nine months is a precedent and it is also according to common law and Israeli law, the mother who gives birth is the legal mother. When you put on the scales spouses who may have lost a frozen fetus, it is obviously heartbreaking, but it is not comparable to taking a child from a woman who gave birth to him." .

"The very thought of taking a child from the mother who gave birth to him is a sick evil in our society. It is the belittling and exploitation of women, especially in the sexual sphere of fertility. The discourse of taking a baby is a discourse of power, of those who claim to determine questions at the basis of human existence through the bureaucracy and science and law that humans create ".

Prof. Bar Ilan is very clear and claims that the emphasis, or the choice of parenting based on genetics, is a slide into tribalism, racism, and even chauvinism.

"The discourse that the real parent is the genetic parent is the one behind which the exploitation of women is hidden. Because in genetics we are all equal. I give sperm, the woman gives an egg and apparently we are partners. But in practice what is it to be a woman and carry the pregnancy, breastfeed, experience health consequences, and experience a direct and indirect burden on The health, the career and more. We in our company systematically suppress it."

"It is clear that if the woman did not want the child she conceived it would be easier. If the mother wants the child and says that this child is mine, and she identifies with him, how can he be taken from her. This is cruelty that I do not believe is on the agenda. The very anxiety about taking The child greatly undermines the mental health of the mother and is also a direct harm to the health of the fetus in her womb. How did our courts create such a traumatic birth for its possible damages?"

Did the courts create a traumatic birth?

Illustration of a birth (Photo: ShutterStock)

"Preference for genetic affinity"

"The physical and health characteristics of the fetus originate from the genetic parents, as well as the recognition of tastes in the soul and spirit"

But there are those who think otherwise.

"In choosing between genetic affinity and physiological affinity, we believe that in principle the genetic affinity should be preferred since the origin of the embryo is in the genetic load of its parents, and they are the ones who created it with the assumption that they will raise it in the future," so write Dr. Adi Niv Yagoda and Prof. Roy Gilber In an article for the legal journal of Tel Aviv University. "The physical and health characteristics of the fetus originate from the genetic parents, as well as the recognition of the tastes in the soul and spirit, and hence, in our opinion, the law must give priority to the genetic affinity."

"We do not ignore the emotional bond that is created between the surrogate mother and the fetus nor the actions that the surrogate mother undertakes - sometimes at significant risk to her health and life - in order to give birth to the child. But, when we closely examine the law and rulings, we believe that these, in the end, grant Priority is given to the genetic relationship. In this context, the claim may be made that the physiological mother wanted the fetus and acted to realize this desire. However, we believe that the aspect of desire has no ability to decide this conflict between the two relationships since the genetic parents also, certainly under the circumstances of the Asuta case, wanted to have a child And they took actions to put this desire into action."

"However, beyond the inherent and principled tension created between the two relationships, it is possible that the specific circumstances of a particular case that will reach a judicial decision will raise additional unique relevant considerations that will have a place in the legal discussion. For example, the ability of the physiological mother to conceive again in the future, and the ability of the genetic mother to bear in the future The pregnancy of additional embryo(s) that she has already frozen. Another unique consideration may be the health status of the child at the time of birth. If the mother-physiological subject knows during pregnancy that the fetus has defects, then her decision not to terminate the pregnancy directly affects the genetic parents, because if the child is born and the parents The genetic parents will be recognized as the legal parents, after all, they will be forced to raise a child that they may have decided during the pregnancy not to bring him into the world. Hence, it is possible that unique considerations, depending on the special circumstances of the case, will tip the scales to a judicial decision that is contrary to our principled position that gives priority to genetic parenthood."

"Crisis of trust that requires treatment"

"The uncertainty is now spreading to dozens of couples who have been treated or are waiting for embryos to be returned from the laboratory and the breach in patients' trust requires a response"

"It is important to emphasize that the surrogacy law allows, under exceptional circumstances, a surrogate mother to withdraw from the agreement to carry fetuses and allow her to keep the child as long as a parental order is not issued to the intended parents," says Prof. Gil Siegel, head of the Center for Law, Ethics and Policy, Ono Academic College and a retired member of the National Council Livio Ethics.

"My opinion is that in the current case of forced surrogacy, the harm to all parties cannot be easily or "correctly" resolved. If she wishes, the mother should now be declared the mother and guardian of the child. They will have the right to be the first to receive the legal status of parents, similar to a normal surrogacy procedure (parentage order)."

Prof. Gil Siegel agrees that now with the new discovery the chance that the baby will be taken from the pregnant mother is small.

"They won't take the child away from her as long as there is no couple claiming against her," he says.

"She will give birth, and every day that passes will decrease the chance that the newborn will be taken from her. But now dozens of couples are turning upside down, perhaps the embryo originates from their fertilized egg. The fact that no genetic connection has been found for the particular couple creates a different kind of difficulty. The uncertainty now spreads to dozens of couples who have been treated or are waiting to be returned We move from the laboratory and the breach in patients' trust requires a response."

According to Prof. Siegel, in any case, such complex events should not be resolved in court.

"The Patient's Rights Law, the Dying Patient Law, the Genetic Information Law and more recognized the importance of ethics committees for solving difficult cases of life and death. We must make use of it in this complex case."

The direct effects of the case on the health system in Israel

And here we come to the issue of surrogacy. The final decision in court when it comes, if it comes, could collapse the ground under this very common procedure, and there are those, like Prof. Bar Ilan, who claim that this is an opportunity to challenge commercialized surrogacy and outlaw it.

Implications for surrogacy in Israel?

A pregnant woman (photo: ShutterStock, shutterstock)

"Commercialized surrogacy, in my opinion, is immoral towards most women and it is also immoral towards the children. It can be done differently. The one that pays a woman money and erases her identity (both elements exist in Israeli law) - these two elements are immoral."

However, he qualifies his words and clarifies that "there are cases where people find it difficult to have children and there are women who are willing to be pregnant, there is nothing negative about that, but we must not erase their identity and make the woman disappear as is done in poor countries in most cases, because it is not convenient to maintain an emotional connection or Obliging with the wife, while it is easy to get a child with money and forget about his "manufacturer", as if he were a commodity ordered abroad.

In the land of Israeli surrogates they are citizens and entitled to health insurance and a respectable welfare basket, but in all kinds of other places in the world the women are unhappy and in need of money and these pregnancies have health effects on these mothers who may be in third world countries without access to medical assistance.

The law that discloses the identity of the birth mother is a crime.

Why deny the child the knowledge of the woman who gave birth to him.

This is the object of the woman."

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• Pregnancy and Birth

• Fertility and gynecology

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