They were born to the same woman on the same day, loved and cared for in the same way and treated as brothers.
But the 3-month-old boys are not related. One is black, one is white. They ended up in the same womb apparently because of a doctor’s mistake.
Now the only mother the boys ever have known says she’ll return the child who does not share her DNA, the black child, to his genetic parents.
“We’re giving him up because we love him,” Donna Fasano said Tuesday in a handwritten statement supplied by her lawyer.
“Both of these boys are beautiful–two precious, normal little boys,” said her lawyer, Ivan Tantleff. “They sit in the swing together. They sit in the tub together. . . . We’re going to try to arrange some kind of visitation rights so the boys grow up to know they are brothers.”
Rudolph Silas, lawyer for the black couple–Deborah Perry-Rogers, a nurse, and Robert Rogers, a teacher, of Teaneck, N.J.–said the couple is amenable to visitation. “It’s in the children’s best interest,” he said.
The Rogerses and the Fasanos are expected to meet for the first time within a week. Silas said that the Rogerses likely will get custody in a few weeks, after DNA tests and legal papers are completed.
“My clients are both ecstatic,” Silas said. “They are the proud parents of a 3-month-old baby boy. Of course there’s some mixed emotions in the manner in which it has been brought to this point. But they’re happy she made the decision she has made.
“We would have wished to have been a lot more involved earlier. But we appreciate the stress she was under.”
The case began last April 24, when Fasano and Perry-Rogers underwent embryo implantations in the Manhattan offices of Dr. Lillian Nash. Only Fasano became pregnant.
Nash had implanted Fasano not only with four of her eggs fertilized by her husband, but with several other fertilized eggs. Nash later advised Fasano that she might have mistakenly received someone else’s embryo. Fasano sought DNA testing from another doctor and learned, while the babies were still in utero, that one was not hers.
She did not know the other parent’s identity until the Rogerses sued the Fasanos and Nash on March 16.
The Rogerses’ lawsuit seeks custody of one boy and claims negligence, malpractice and breach of contract on the part of Nash and two other physicians.
“This wasn’t my doing,” Fasano said in her statement. “People with infertility problems should be able to go to their doctors and trust them to do the right thing. To them it may be a job; to me it’s my life. . . . (Nash) may have given me two beautiful babies, but she destroyed their lives.”
Tantleff said the Fasanos, who are in their late 30s and work in finance, also will sue Nash. A call to Nash was not returned.
The New York state Health Department on Tuesday started an investigation into the embryo mixup.
George Annas, a professor of health law at the Boston University School of Public Health, said Fasano’s decision “seems like a reasonable solution but it’s got to be heart-wrenching.”
“This is her son’s brother. It is her child. They are twins, raised in the same uterus. They’ve been together for 14 months. They’re twins in every sense–except genetic,” Annas added. “The other mother did provide the genes, but she has no relationship with them. That’s the tragedy of it.”
David Lykken, professor emeritus from the University of Minnesota and an expert on twins, said if the boys are separated this young, there should be no lasting impact on their development.
Is Fasano the black child’s mother?
Lawyers agree that the woman who gives birth is legally considered the child’s mother regardless of DNA.
