## Facts

- A fertility clinic mistakenly implanted embryos created from Deborah Perry-Rogers and Robert Rogers’s genetic material into Donna Fasano, who was undergoing IVF at the same clinic.
- Donna Fasano carried both the Rogerses’ embryo and an embryo created from her and her husband Richard Fasano’s genetic material.
- The clinic informed both couples of the error during the pregnancy and advised testing.
- Donna Fasano gave birth to two male infants: one genetically the Fasanos’ child and one genetically the Rogerses’ child.
- DNA testing confirmed that the Rogerses were the genetic parents of the child at issue, later named Akeil Richard Rogers.
- The Fasanos kept custody of Akeil for several months after birth and later transferred custody to the Rogerses pursuant to a written agreement that contemplated ongoing visitation for the Fasanos and amendments to the child’s birth records.
- The Rogerses sued for a declaration of parentage and custody, and challenged court-ordered visitation granted to the Fasanos.

## Issues

1. In an embryo-implantation error, whether the genetic, intended parents should be declared the child’s legal parents and awarded custody over the gestational mother and her husband.
2. Whether the gestational mother and her husband, not genetically related to the child and not adjudicated as parents, have standing under New York law to seek court-ordered visitation.
3. Whether a private visitation agreement can supply a basis for judicial visitation relief where statutory standing is absent.

## Decision

- The court affirmed the declaration that the Rogerses were the child’s legal and biological parents and affirmed the custody award to them.
- The court reversed the visitation order, holding the Fasanos lacked statutory standing to seek visitation.
- The court held the parties’ visitation agreement could not expand the class of persons eligible to obtain court-ordered visitation.
- The court rejected equitable theories (including estoppel) as a basis to treat the gestational couple as entitled to visitation where the asserted relationship developed after notice of the clinic’s mistake.

## Legal Principles

- In a proven IVF implantation error, legal parentage may be determined by genetic parentage together with intent to procreate, treating the situation as a correctable medical mistake rather than a redefinition of parentage by gestation alone.
- Standing to seek visitation is limited to categories specified by statute; courts do not reach a best-interests analysis on visitation unless the petitioner first has standing.
- A private agreement between adults cannot create statutory standing or authorize a court to issue visitation orders for persons outside the legislature’s identified classes.
- Equitable estoppel does not supply visitation standing where the claimed bond was formed after the nonparents learned of the mistake and failed to act in a manner supporting equitable relief.

## Conclusion

The court recognized the genetic, intended parents as the child’s legal parents and awarded them custody, while holding that the gestational couple had no statutory basis to obtain court-ordered visitation and that a private agreement could not confer such rights.


Perry-Rogers v. Fasano, 276 A.D.2d 67, 715 N.Y.S.2d 19 (N.Y. App. Div. 1st Dep’t 2000)