Hastings Constitutional Law Quarterly


Supriya Kakkar


Two couples, wanting desperately to conceive, go for help to the same fertility excruciating procedure. Couple A fights the odds and walks away with their miracle baby. Couple B is not so lucky. They walk away empty handed. Years later, a horrifying truth is revealed. Without the consent or knowledge of either couple, doctors transferred Couple B's embryos to Couple A. Couple A finds out that their miracle baby is genetically the offspring of Couple B. Now, Couple B is suing for custody. Who wins?

Doctors at the University of California, Irvine fertility clinic transferred embryos without the approval or knowledge of the genetic and gestational parents. This Note examines the shocking events that took place at Irvine to determine how the law should decide ownership in the resulting custody cases. Courts should consider the genetic ties as one factor under family law's best interests doctrine to resolve a custody dispute regarding a child conceived through unauthorized embryo transfer. Given the inapplicability or inadequacy of constitutional law, contract law, and property law to handle such custody disputes, the best interests standard, in addition to the gestational mother presumption, will provide the best solution to such a difficult and sensitive issue.