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A court order giving a white couple’s visitation with a black child born to them after a mix-up of embryos during in vitro fertilization was revoked Thursday by an appellate court. The appeals court ruled that under the unique circumstances of the case, the white couple lacked standing to seek visitation as the child’s parents. The Appellate Division, First Department, in Perry-Rogers v. Fasano, 1605, unanimously reversed Justice Diane A. Lebedeff’s order giving Donna and Richard Fasano visitation every other weekend with Akeil Richard Rogers, now 22 months old. The order had been stayed while the appeal was pending. Mrs. Fasano gave birth to a black child, whom the couple named Joseph Fasano, and a white child, Vincent Fasano, on Dec. 29, 1998, after undergoing in vitro fertilization. During that process, embryos combining genetic material from Deborah Perry-Rogers and Robert Rogers, of Teaneck, N.J., were mistakenly implanted in Mrs. Fasano’s uterus along with embryos combining genetic material from Mr. and Mrs. Fasano, of Staten Island, N.Y. Both couples were notified before the boys were born by the clinic where the in vitro fertilization procedures were performed that a mix-up had occurred, but the Fasanos took no action to correct the error until the Rogerses located them and commenced an action against them on March 12, 1999, said Justice David B. Saxe in the opinion he wrote for the five-judge appeals panel. Emphasizing that the court’s holding was intended to be limited to the circumstances presented by the unusual case, Justice Saxe agreed with the Rogers that the Fasanos did not have standing to insist on visitation with the boy after relinquishing custody to Mr. and Ms. Rogers on May 10, 1999, after the two couples signed a visitation agreement. A court order was entered that month naming the Rogerses as the baby’s legal and biological parents, granting them sole custody and amending the child’s birth certificate, but no mention was made of the visitation agreement. Within weeks the Fasanos sought vacatur of the order on the grounds that the Rogerses had failed to inform the court of the parties’ visitation agreement. Justice Diane Lebedeff issued visitation orders and directed that a full forensic psychological evaluation of the parties and the children be conducted. Saxe wrote that a birth parent does not automatically give up all parental rights in any dispute between genetic and gestational parents, but in this case the Fasanos were not entitled to seek visitation as the child’s parents. ‘UNIQUE CIRCUMSTANCES’ “[W]e recognize that in these rather unique circumstances, where the Rogerses’ embryo was implanted in Donna Fasano by mistake, and where the Fasanos knew of the error not long after it occurred, the happenstance of the Fasanos’ nominal parenthood over Akeil should have been treated as a mistake to be corrected as soon as possible, before the development of a parental relationship,” he emphasized. “It bears more similarity to a mix-up at the time of a hospital’s discharge of two newborn infants, which should simply be corrected at once, than to one where a gestational mother has arguably the same rights to claim parentage as the genetic mother,” the judge added. In other cases it might be appropriate to determine whether a psychological bond between the child and the couple claiming parenthood exists which should not be abruptly severed, Saxe said, but the Fasanos’ bonding with the child over four and a half months was not enough in this case. “[A]ny bonding on the part of Akeil to his gestational mother and her family was the direct result of the Fasanos’ failure to take timely action upon being informed of the clinic’s admitted error. Defendants cannot be permitted to purposefully act in such a way as to create a bond, and then rely upon it for their assertion of rights to which they would not otherwise be entitled,” the judge said. Neither the parties’ visitation agreement nor the doctrine of equitable estoppel would prevent the Rogerses from challenging the Fasanos’ standing to seek visitation, he concluded. Justices Milton L. Williams, Peter Tom, Betty Weinberg Ellerin and Richard T. Andrias concurred with Justice Saxe’s opinion.

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