Supreme Court of New York, Appellate Division
715 N.Y.S.2d 19 (N.Y. App. Div. 2000)
An embryo with the genetic material of Deborah Perry-Rogers and Robert Rogers (plaintiffs) was mistakenly implanted in the uterus of Donna Fasano. Fasano and her husband (defendants) were clients at the same fertility center. The Rogerses and the Fasanos were informed of the mistake approximately one month after the in vitro fertilization of Fasano. Both parties were told that DNA tests would be needed, because an embryo with the genetic material of the Fasanos was also implanted in Fasano. Fasano gave birth to two children. One child was white and was the Fasanos’ biological child; the other child was black and would later be proven to be the Rogerses’ biological child, Akeil. When the children were born, the Fasanos did nothing about the error that had clearly occurred. When the Rogerses found out about the birth, they brought suit for a declaratory judgment on their rights and responsibilities with respect to Akeil. The Fasanos conceded custody of Akeil to the Rogerses. A New York IAS court granted the Fasanos visitation rights with respect to Akeil every other weekend. The Rogerses appealed, arguing that the Fasanos did not have standing to assert visitation rights.
Rule of Law
Holding and Reasoning (Saxe, J.)
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