The Custody Conundrum of X-23

With the movie Logan already making its mark, it’s no secret that X-23 (a.k.a. Laura Kinney) is one of the main characters. As Professor Xavier states, this girl is “a lot like [Logan].” The intricate relationship between Logan (Wolverine) and X-23 has been extensively covered in the comic books, but that does not make it any less convoluted.

[SPOILER WARNING]

X-23 via Logan

In the after credit scene of X-Men Apocalypse we see individuals from Essex Corp collecting Wolverine’s blood at the Weapon X facility. This scene is likely the connecting factor between the new X-Men timeline and the events of Logan. The inference is that somehow, Nathaniel Essex, or at least his corporation, somehow had a hand in the making of X-23. In the comic books, X-23 gets her name because the DNA sample from Wolverine is damaged. The only part they are able to successfully recover is his X chromosome. As a result, any successful attempt at cloning him was restricted to female clones. X-23 was the 23rd attempt at creating such a clone. So, unbeknownst to Wolverine, he has a clone running around with his DNA. The question is, does he have custody over this clone like a child? Or does he have any legal basis to claim paternity?

Property over Parenthood

The first hurdle is whether or not X-23 can be considered a person. In the case of Toybiz Inc. v. United States the United States Court of International Trade ruled that the X-Men were considered “nonhuman creatures.” No. 96-10 (Ct. Int’l Trade 2003). In this sense there may be an argument that no mutant actually has “human rights.” This case however, was not about civil rights and focused on whether or not the X-men action figures were classified as “toys” or “dolls” for import duty purposes.

Specific to X-23, the fact is that Essex Corp created her in a lab, not as an instance of an in vitro fertilization procedure or surrogacy agreement, but with specific DNA to create a specific result. In some jurisdictions the courts have allowed for the patenting of a specific DNA strain to create a specific result. The best example is the Oncomouse. The Oncomouse, or Harvard Mouse, is a laboratory mouse that was genetically modified by Harvard University professors to make it more susceptible to getting cancer. In this way, the mouse had been used for multiple research experiments since the 1980’s. However, Harvard was not always successful in getting its patent.

While the patent application was granted in the United States without ever having to go to Court, there was significantly more fanfare in the Canadian patent system. Originally, the Canadian Court’s denied the patent application in the case of Harvard College v. Canada (Commissioner of Patents), [2002] 4 SCR 45 Docket No. 28155. In that case the Court held that a higher life form could not be patentable because it was not a “composition of matter” in the definition of invention under the Patent Act. After the ruling by Canada’s Supreme Court, the patent application was granted after it was amended to exclude the “composition of matter” claims.

In this vein of thought, some courts may not consider mutants to be human per se. As a result, Wolverine would not be afforded any parental rights in regards to X-23. Instead Wolverine, and any other mutant, would be categorized as property. To give him rights within the pretext of the Oncomouse case law would be akin to granting property rights to property.

Custody of Clones

Assuming that mutants in general, including X-23, are afforded human rights, then the next question revolves around the custody of cloned individuals. As you can imagine, at present, there is very limited case law on cloned individuals. After the now famous cloning of Dolly the sheep in 1996, President Clinton ordered for a multidisciplinary panel of experts to study the ethics of cloning and identify the potential implications. As part of this, Nanette Elster wrote an article for the Hofstra law review entitled Who is the Parent in Cloning?. (1999) Hofstra Law Review: Vol. 27: Iss. 3, Article 6. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol27/iss3/6 . The article ultimately concludes that modern laws are not yet equipped to handle the complex questions involved in the custody of clones. Rather than the two parent model, clones could ostensibly have as many as four, or as few as one parent. Since the time this article was written many states have evolved beyond the presumed two parent model.

Intending Parents

Recent Connecticut case law has highlighted the importance of “intended parent,” or parents who sign a valid surrogacy agreement, but have no genetic link to the resulting child. The case of Raftopol v. Ramey, established that in Connecticut, two parents who have a signed surrogacy agreement, thus representing their intention to be parents, can put their names on a child’s birth certificate, even if they have no genetic link to that child. 299 Conn. 681, 12 A.3d 783 (2011). The case of X-23 might be much simpler than this though.

Weapon X: Wolverine

In the case of X-23, there is no surrogacy agreement. In fact, Wolverine was completely unaware that his DNA was being used to create a clone. In the story of X-23: Innocence Lost, the revitalized Weapon X project involved Wolverine’s DNA being taken, unbeknownst to him, and being generated into a viable sample. This sample was then placed in the uterus of Dr. Sarah Kinney to act as the surrogate for X-23. The comic is unclear on whether the fertilized egg belonged to Dr. Kinney, but for the sake of simplicity, we can assume that it was. With these facts, the only two parents X-23 has are Wolverine, and Dr. Kinney. Even without this information, Connecticut law creates the presumption of parental rights with the birth mother, so Dr. Kinney would not have to do anything more to secure her parental rights to X-23.

Wolverine’s Paternity

In the comic books, Dr. Kinney is killed by her own daughter as a result of a triggered rage, planned by the very people Dr. Kinney worked with in order to create X-23. As a result, Wolverine is the only parent left. He must establish his paternity though, as he presumably is not on X-23’s birth certificate (realistically since she is part of a secret quasi-government experiment, she may not even have a birth certificate since a paper trail would defeat the purpose of keeping it a secret). To claim paternity for X-23 Wolverine has two options. One would be to file an Acknowledgment of Paternity with Dr. Kinney, while the other option would be to file an action claiming paternity in Connecticut Superior Court. If Wolverine does not know of X-23’s existence until after Dr. Kinney’s death, then option one is out. To complete option two, Wolverine would file a paternity action, and then secure a DNA test.

The DNA test presents another unique problem. X-23’s name comes from the fact her DNA is made up of two of Wolverine’s X chromosomes. As a result, any DNA test will result in a 100% match with her “father.” In all actuality then, Logan’s parents, Elizabeth Howlett and Thomas Logan, would be more like her parents. However, since they have long since been dead, her closest living relatives are Wolverine and interestingly enough, Dog Logan, Thomas Logan’s other son. Despite the fact Wolverine and X-23 would be more like twins, the law does not recognize this as granting Wolverine any more rights than Dog when it comes to custody.

Dog Logan

Best Interests of X-23

Ultimately, if Wolverine and Dog Logan both applied to get custody of X-23, the Court would have to take into consideration the best interests of the child. Fish v. Fish, 285 Conn. 24, 28 (2008). The bests interests of the child includes an analysis of 16 factors which the court can consider under Conn. Gen. Stat. sec. 46b-56(c), The eleventh factor in that analysis happens to discuss the stability of the child’s proposed residences. If Wolverine and Dog Logan had competing applications for custody, then a Court might be compelled to analyze each applicant’s current residence. For Wolverine, this would be the Jean Grey School for Higher Learning, while Dog Logan is the physical education teacher at the Hellfire Academy. Absent a compelling reason otherwise, a court might have a difficult time determining that either one of those residences may be suitable for a young child. For one thing, the Hellfire Academy potentially has on its list of faculty persons with criminal records. A Court could find that this does not present a stable environment.

The Jean Grey School for Higher Learning may not be much better. Although this is the new name of the school, it is still premised on Charles Xavier’s original school, which was a part of X-Mansion. As any Marvel fan knows, X-Mansion has not only been infiltrated on numerous occasions, but it has also been razed more than once. It would be hard for the Court to consider this a stable environment, despite the staff’s uncanny speed and efficiency in reconstruction.

Conclusion

Overall, if X-23 were to be considered a human and not property, it is not clear that Wolverine would be able to get custody of her. In fact, he and his half brother Dog Logan may have the same legal rights to any claim over their “biological sister.” At that point, a court would have the unenviable position of having to decide whether it would be in X-23’s best interests to live in an Academy full of super villains, or to live in a Mansion which tends to implode every other Tuesday. In the grand scheme of things, either option may be preferable to being held captive by a quasi-government organization, so the court would likely have to weigh the factors carefully. I do not envy the Court tasked with this analysis.

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Kean Zimmerman

Kean Zimmerman is an attorney in Connecticut, and a graduate of Michigan State University College of Law (his choice of school may have been affected by the fact that MSU has the largest library comic book collection in the world). He is a fan of all things geek related, but he has a special affinity for anything Star Wars. It is for this reason that his Darth Vader toaster is the most important appliance in his kitchen.