TIME: Almanac 1993/TIME Almanac 1993.iso/time/072489/07248900.058

Text File | 1992-09-23 | 6KB | 123 lines

                                                                                ETHICS, Page 63

The Rights of Frozen Embryos


Complex, painful dilemmas are raised by in vitro fertilization

By John Elson


    As ethicist Thomas Shannon sees it, "The application of in
vitro fertilization has moved almost overnight from the lab to
the clinic."  Shannon, who teaches at Worcester Polytechnic
Institute in Massachusetts, might have added, and into the law
courts as well. Like many other modern technological wonders,
the artificial union of sperm and ovum to form a zygote, which
is then frozen for eventual implantation in a woman's womb, has
gone from the near miraculous to the almost mundane -- and
ultimately to the moral dilemma. One current legal case
addresses two of the key ethical questions raised by in vitro
technology: Who should exercise primary rights over the frozen
embryo? And what rights, if any, does the embryo have?

    In 1986 Risa and Steven York entered an in vitro
fertilization program operated by the Howard and Georgeanna
Jones Institute for Reproductive Medicine in Norfolk, Va. But
three implants failed. The Yorks, who last year moved from New
Jersey to California, asked the institute to ship their frozen
embryo to a comparable facility at Los Angeles' Good Samaritan
Hospital, where Dr. Richard Marrs was prepared to supervise its
implantation. Much to the couple's surprise, Jones refused,
arguing that the consent agreement signed by the Yorks gave them
no rights to the embryo outside his institute's jurisdiction.
In effect, Jones contended, the Yorks have only four choices:
they could have their embryo implanted at the institute, donate
it to another couple, offer it for experimentation or destroy
it.

    Last month a federal judge denied the Yorks' request for a
preliminary injunction against the institute and ordered that
the case be tried by a jury in the fall. The decision was a blow
to the Yorks, for whom time is critical. Risa is 39, and the
spontaneous abortion rate for in vitro implants increases
dramatically in women beyond the age of 40. Also, the longest
recorded freezing of an embryo that was later successfully
implanted is 28 months; the Yorks' embryo has been in a
cryogenic state for 24 months.

    Cases like the Yorks' are bound to multiply. The nation's
population of frozen embryos exceeds 4,000, and state laws
governing their use are often in conflict with one another or
at odds with reality. In Louisiana, for example, a 1986 statute
defines a frozen embryo as a juridical person -- meaning that
it has legal status and can be represented by an attorney in
court proceedings. But under another Louisiana law, a woman can
legally abort an implanted embryo through the first trimester.
In an attempt to resolve some uncertainties, an ethics committee
of the Virginia-based American Association of Tissue Banks is
drafting rules for the handling and disposition of frozen
embryos.

    Without prejudging the York case, many ethicists believe
that as a general rule, a couple's primary claim to use of its
embryo has a sound basis in law and common sense. "When a
physician starts owning embryos and making decisions for his
patients," says Marrs, co-founder of Good Samaritan's Institute
for Reproductive Research, "there'll be no stopping anyone who
has anything to do with pregnancy from getting involved." The
Roman Catholic Church, in company with many conservative
Protestant groups, opposes all in vitro fertilization.
Nonetheless, the Yorks have received moral support in their suit
from the Right to Life League of Southern California. "Howard
Jones has no rights in this matter," says president Susan
Carpenter McMillan. "He's playing God -- in effect saying `I
created this life, so I can decide what to do with it.' But he
only provided the tools, not the materials."

    Nonetheless, most ethicists agree that the couple's
proprietary right to their embryo is not absolute. Some
specialists contend that institutes and laboratories should have
the right to prevent couples from authorizing inappropriate
experimentation on embryos. These experts believe that couples
considering in vitro fertilization should seek professional
counseling as a matter of course. They should decide in advance
what is to be done with the zygote if they do not use it because
of death or divorce, and their decision should always be
codified in a legally binding contract. "The power to decide
should be agreed upon at inception," says John Robertson, a
University of Texas law professor who serves on the ethics
committee of the American Fertility Society.

    Such contracts might preclude the kind of puzzle raised by
a Blount County, Tenn., divorce case that is still being
adjudicated. Mary Sue Davis wants her and her husband's frozen
embryos kept in storage in case she wishes to use or donate
them. Husband Junior Davis wishes them destroyed, arguing that
their use after the divorce would force him into unwanted
fatherhood.

    Many ethicists have problems with the Louisiana law, which
was designed with the laudable goal of protecting the embryo
from experimental misuse or casual destruction. For example,
does the statute's definition of the zygote as a juridical
person mean that it has inheritance rights? Many secular experts
argue that an embryo need not have the protection accorded human
life until the fetus begins to take on recognizable features --
roughly, at the sixth week of pregnancy. But because of its
human potential, these ethicists say, the frozen embryo should
not be treated as mere tissue. Thus they see the donation of an
embryo by one couple to another as analogous to adoption, but
they argue that the marketing of zygotes is as repugnant as the
sale of children.

    Beyond that, notes Dr. Kathleen Nolan of New York's
Hastings Center, "there is no consensus on how to talk about
frozen embryos." In fact, she observes, the ethical debate is
even less focused than the unending rhetorical battle over
abortion. Which means, ultimately, that all concerned have a lot
of hard thinking to do before legislatures and courts can begin
to determine where rights and wrongs begin.


-- Mary Cronin/New York and Frank Feldinger/Los Angeles