Mother Agrees to Surrender One Twin Son After an Embryo Mix-Up

NEW YORK —  A woman who gave birth to twin sons--one black and one white--after another couple’s embryos were mistakenly implanted with her own will surrender the black baby to his biological parents, her lawyer said.

Donna and Richard Fasano had been raising the two as brothers since their Dec. 29 birth but she said in a handwritten statement supplied by her lawyer Tuesday: “We’re giving him up because we love him. We both want what’s in the best interest of the child.”

“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 that they are brothers.

“The Fasanos have reared, loved and cared for both children as their own. [Donna Fasano] doesn’t look at them as white and black. She looks at them as her sons. She is torn apart by this.”

Rudolph Silas, lawyer for the black couple, Deborah Perry-Rogers, a nurse, and Robert Rogers, a teacher, of Teaneck, N.J., said they are amenable to visitation. “It’s in the children’s best interest,” he said.

Silas said the Rogerses will probably 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’s been brought to this point. But they’re happy she made the decision she’s made.”

He added: “We would have wished to have been a lot more involved earlier. But we appreciate the stress she was under.”

The case began April 24, 1998, when Fasano and Perry-Rogers underwent embryo implantations in the Manhattan offices of Dr. Lillian Nash. Only Fasano became pregnant.

Dr. Nash later advised her 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 parents’ identity until the Rogerses sued the Fasanos and Nash on March 16.

Tantleff said the Fasanos, who are in their late 30s and work in finance, will also sue Nash. A call to Nash was not returned.

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’re twins in every sense--except genetic.”