COURT refuses to hear case of mistakenly implanted embryo

Wednesday, May 9th 2001, 12:00 am

By: News On 6

ALBANY, N.Y. (AP) _ New York's highest court refused to hear an appeal of a ruling that denies visitation rights to a white woman who was the unwitting surrogate mother of a black child after an embryo mix-up at a fertility clinic.

Donna Fasano gave birth to the child, along with one of her own children, after an embryo taken from Deborah Perry-Rogers was erroneously implanted in her.

The lower appeals court ruled in October that Fasano was not entitled to spend time with the child. On Tuesday the Court of Appeals ruled, without comment, that it would not hear the appeal.

Bernard Clair, lawyer for Perry-Rogers, called the decision ``a great relief'' to his client.

But one of Fasano's lawyers, Jay Breakstone, said it was ``too simple'' to call Perry-Rogers the baby's biological mother. Rather than abort the fetus, Fasano risked her own life and her other child's life by carrying both babies to term, he said.

The embryo mix-up happened at a fertility clinic visited by both women on the same day in 1998. Fasano later gave birth to two boys, one black and one white. Perry-Rogers and her husband won custody of the black child.

The lower court's ruling had compared the situation to a mix-up of two newborn infants where no special visitation rights are granted.