Student Project #25

by Christine Merin

RESEARCH QUESTION:

What Are the Legal and Ethical Issues Involving Frozen Embryos of Divorced Couples?

INTRODUCTION 

Advanced reproductive technology continues to aid couples experiencing difficulties in having children in our modern times. The 20th century has seen such things as the first test tube baby, in vitro fertilization and the implantation of frozen embryos. However, when legal and ethical problems regarding these issues arise, the legal field has usually been unable to keep up with advancing technology.

In the case of frozen embryos, most clinics require that couples sign a contract regarding the disposition of frozen embryos in the event of divorce, death or non-payment of clinic storage fees. However, in the past decade there have been three state supreme court decisions from Massachusetts, Tennessee, and New York, deciding the fate of frozen embryos of divorced couples. Issues involved include: What is the legal status of a frozen embryo? Who should retain custody of them? If one person wants to bring the frozen embryos to term and the other does not, who has the right to say yes or no? Should someone be forced to become a parent against their will? Will child support be demanded? Also, in the case of signed contracts required by clinics, will they be upheld in courts? As mentioned, the state supreme courts of three states have dealt with this specific issue with varying outcomes. There are similar cases "pending in a half-dozen other states and are likely to become more common as the numbers of frozen embryos, now estimated at 150,000, increase." ("Ex-Husband Wins Embryo Dispute.")

"The whole field is a little bit like the Wild West, with a kind of free-wheeling market, very little ethical oversight, very little regulatory oversight," says Arthur Caplan, director of the University of Pennsylvania Center for Bioethics, based in Philadelphia. (Teicher)

Until recently, previous state supreme court decisions tended to rule that whenever possible, the agreement a couple signed with a fertility clinic about what to do with their embryos in the event of a divorce or death should be considered a contract. But the Massachusetts state supreme court ruling in April 2000, "indicates that such a contract is far from iron-clad." ("Ex-Husband Wins Embryo Dispute.") While the side opposing the implantation of the divorced couples' four frozen embryos did not want to be forced to become a parent, one wonders why the couple originally went through the process to create the embryos in the first place. As the Massachusetts court stated "forced procreation is not an area amenable to judicial enforcement," whereas at the same time the court's decision denies the other side the right to procreate. ("Ex-Husband Wins Embryo Dispute.")

Frozen Embryos -- Moral and ethical aspects

Human Reproductive Technology -- Law and legislation -- United States -- Legal Research

Frozen human embryos -- Government policy -- United States -- Legal Research

Fetus -- Legal status, laws, etc. -- United States -- Legal Research

Andrews, Lori B. The Clone Age: Adventures in the New World of Reproductive Technology. New York: Henry Holt,1999.

Reviewer William Beatty advises that Andrews for 20 years has been a lawyer advising governmental and academic groups, in the United States and overseas, on the legal aspects of reproductive technology. She has visited laboratories of major researchers in the reproductive field and has interviewed numerous others. Mr. Beatty stated that "Andrews account of the ELSI (ethical, legal, and social implications of genetics) working group within the highly funded and publicized Human Genome Project (HGP) deserves careful reading. Of course, Andrews was the chair of ELSI until the HGP director killed the group." Apparently, the reviewer found Ms. Andrews book highly fascinating and intriguing in dealing with the legal and ethical aspects of this highly sensitive topic, as "she opens readers' eyes to the almost inhumane commercialism involved" in the new world of new high tech reproductive technology.

Arthur Caplan, PhD., director of the Center of Bioethics, University of Pennsylvania, quoted by the book's publisher, commented about Ms. Andrews' book " If you are looking for a book that can make the technical world of reproductive medicine understandable and the abstract world of law comprehensible - this is it." Amazon.com. Editorial Review.

"Bar Association to Establish First-Ever Policy on Frozen Embryos", The Nando Times 1 February 1998. 29 April 2000. <http://www.nandotimes.com/noframes/healthscience/ .>

Beatty, William, Rev. of The Clone Age: Adventures in the New World of Reproductive Technology, by Lori B. Andrews. Booklist. 15 April 1999: 1487. Amazon.com. 29 April 2000. <http://www.amazon.com/exec/obidos/ASIN/0805060804/qid=958580615/sr=1-3/102-9269472-8344843>.

Booth, Michael. "Appellate Court Mulls Nature of Frozen Human Embryos." The Legal Intelligencer Suburban 5 April 2000: 8. Lexis-Nexis. 4 May 2000. <http://www.lexis.com/research>

Booth, Michael. "Fate of Frozen Embryos Bring N.J. Again to Bioethics Fore; With No Precedent, Court to Decide on Request to Destroy Fertilized Ova." New Jersey Law Journal 9 March 1998: 1.

Booth, Michael, "Not A Person Nor Thing: Court Mulls Nature of Frozen Human Embryos." New Jersey Law Journal 3 April 2000. Lexis-Nexis. 4 May 2000. <http://www.lexis.com/research>

Callahan, Joan C., Reproduction, Ethics and the Law: Feminist Perspectives. Bloomington: Indiana University Press, 1996.

Daar, Judith F. "Contract Does Not Override a Woman's Right to Use Fertilized Eggs." The Los Angeles Daily Journal 22 May 1998: 6.

Ellement, John. "SJC Explains Fertility Treatment Decision." The Boston Globe 1 April 2000: B3. News Group File, Most Recent Two Years. Lexis-Nexis. 4 May 2000. <http://www.lexis.com/research>.

"Ex-Husband Wins Embryo Dispute." San Francisco Chronicle 4 Apr. 2000: A4.

"Fertility and Infertility". Compton's Encyclopedia Online. 1998. The Learning Company, Inc. 29 April 2000. <http://www.comptons.com/>

Fiandaca, Sherylynn. "In Vitro Fertilization and Embryos: The Need for International Guidelines." Albany Law Journal of Science & Technology 8 (Winter 1998): 337+.

Fidler, Anne T. and Judith Bernstein. "Infertility: From a Personal to a Public Health Problem." Public Health Reports 1 November 1999: 494. Lexis-Nexis. 4 May 2000. <http://lexis.com/research>.

Glannon, Walter. "Genes, Embryos, and Future People." Bioethics 12.3 (July 1998): 187+. Academic ASAP. InfoTrac. 8 April 2000.

Goldberg, Carey. "Court Says a Partner Can Veto an Embryo Implantation." The New York Times 4 April 2000: 20+. Late Edition - East Coast. 8 April 2000. <http://www.nandotimes.com/>.

Gorner, Peter. "Lori Andrews; Genetics And Reproductive Rights Expert." Chicago Tribune 3 October 1999: 3. News Group File, Most Recent Two Years. Lexis-Nexis. 4 May 2000. <http://lexis.com/research>.

Groark, Virginia. "Divorce Settlement Keeps Frozen Embryos in Limbo." Chicago Tribune 25 March 2000: 5. News Group File, Most Recent Two Years. Lexis-Nexis. 4 May 2000. <http://lexis.com/research>.

Harden, Blaine. "Use of Frozen Embryos Barred; Court Tells Divorced Couple to Abide by Contract." The Washington Post 8 May 1998: A2+.

Kehaulani Goo, Sara. "High Court Set to Hear Embryo Case." The Wall Street Journal 20 October 1999: Eastern edition. NE1+.

Moskowitz, Ellen H. "Some Things Don't Belong in Contracts." The National Law Journal 20.41 (June 1998): 25. Academic ASAP. InfoTrac. 15 April 2000. <http://web2.infotrac.galegroup.com/itw/infomark/799/155/64418022w3/purl=rc1_AIM_0_A20814156&dyn=26!xrn_1_0_A20814156?sw_aep=plan_skyline>

Motter Cullen, MaryAnne. "Lawyers Help Bring Baby Home." The Legal Intelligencer Suburban 22 March 2000: 1. News Group File, Most Recent Two Years. Lexis-Nexis. 4 May 2000. <http://lexis.com/research>.

Overall, Christine D. Human Reproduction: Principles, Practices, Policies. Toronto: Oxford University Press, 1993.

Christine Overall, a professor of philosophy and women's studies at Queen's University in Kingston, Ontario, Canada, specializes in teaching and researching reproductive ethics. In her review of Ms. Overall's book, Human Reproduction: Principles, Practices, Policies, Laura M. Purdy enlightens us to the fact that the book discusses nine thought provoking essays in regards to reproduction and its involvement with new high tech features, including "an interesting comparison of women's and men's rights over frozen embryos." Additionally, "some essays …are a model of feminist philosophy at its best, reminding readers that the unattractive choices women must make with respect to reproduction are often a result of unfair patriarchal arrangements."

Purdy, Laura M. Rev. of Human Reproduction, by Christine Overall. Ethics April 1995: 693. Book Review Digest. Wilson Web. 22 April 2000.

Rev. of Test Tube Babies: A Guide to Moral Question, Present Techniques and Future Possibilities. edited by William A.W. Walters and by Peter Singer. Choice March 1983: 1005. Book Review Digest. Wilson Web. 22 April 2000.

Ritter, Jim. "Ethics Worries Also Born in a Test Tube." Chicago Sun-Times 28 October 1999: 6. News Group File, Most Recent Two Years. Lexis-Nexis. 4 May 2000. <http://www.lexis.com/research>.

Robertson, John A. "Meaning What You Sign." The Hastings Center Report 28.4 (July-August 1998):22+. Academic ASAP. InfoTrac. 15 April 2000. <http://web2.infotrac.galegroup.com/itw/infomark/799/155/64418022w3/purl=rc3_AIM_0_ti_Meaning+What+You+Sign+___1998_The+Hastings+Center+Report_&dyn=20!atrs_P20?sw_aep=plan_skyline>

Teicher, Stacy A. "Brave New World of Reproductive Rights." Christian Science Monitor 5 November 1999: 1.

Walters William A.W. and Peter Singer, eds. Test Tube Babies: A Guide to Moral Question, Present Techniques and Future Possibilities. Melbourne: Oxford University Press, 1982.

This book was reviewed in the March 1983 issue of Choice. The reviewer brings out that Mr. Singer's book is a "unique contribution to the growing literature on biomedical ethics because it deals with many of the overall crucial issues and yet does so in the context of the pioneering application of genetic techniques to the specific problem of aiding infertile couples to have children." Additionally, Mr. Singer discusses the question raised about the "rights of fetuses, about informed consent, and parenthood outside normal sexual relations." The question is also posed as to "whether any limitations should be placed on the means used to help parents procreate", in addition to the "very unusual question of the status of frozen embryos." The reviewer apparently feels quite positive regarding this contribution to the ongoing ethical debates relating to new high tech possibilities in reproduction. Mr. Singer himself is a very learned individual who has served professorships in Australia and the U.K. and most recently has been appointed at Princeton University in the fall of 1999 as the DeCamp Professor in the University Center for Human Values. Mr. Singer is apparently a controversial addition to the Princeton faculty due to the fact that he has strong views regarding euthanasia of severely deformed newborns and that such may be appropriate under certain circumstances. The disabled community has demanded that his appointment to the Princeton faculty be withdrawn. Knowing that such controversy would come up, the Princeton Weekly Bulletin December 7, 1998, "The President's Page", gave a lengthy address regarding Mr. Singer's appointment and the reasons why it was felt that he would be an asset to the University. One of Mr. Singer's students even felt the need to design a web page (http://petersinger.homepage.com/index.htm) in his defense and posted an extremely long list of Mr. Singer's credentials and publications, which have been translated into at least 15 languages and are used as textbooks for instruction.

Warnock, Mary, A Question of Life: The Warnock Report on Human Fertilisation and Embryology. Oxford: B. Blackwell, 1985.

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