TIME: Almanac 1990/1990 Time Magazine Compact Almanac, The (1991)(Time).iso/time/072489/07248900.058

Text File | 1990-09-17 | 6KB | 109 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