"A Legal, Moral, Social Nightmare

By Otto Friedrich

Society seeks to define the problems of the birth revolution

Alexander Morgan Capron, a sandy-haired professor of law at Georgetown University, stood at a blackboard in a hearing room of Congress's Rayburn Office Building and began writing formulas: the symbols represented ten different ways of making babies. The fourth formula that he chalked up read XM & YD by AI with Gestation M, meaning that a married woman is artificially inseminated by a male donor's sperm. The fifth formula, XD & YM by IVF with Gestation M, meant that the beginnings of life could be created through the uniting in a laboratory dish (invitro fertilization) of a woman's donated egg and a married man's sperm. Capron's final version -- X1 & Y2 by IVF or Natural/ AI w/embryo flushing with Gestation 3 and Social Parents 4 & 5 -- outlined how a baby could theoretically have five different "parents."

One reason why Capron resorts to formulas is that biology is now creating concepts of birth and parenthood faster than the standard English vocabulary can define them. As Capron testified before a House science subcommittee early last month, "Many the new reproductive possibilities remain so novel that terms are lacking to describe the human relationships they can create. For example, what does one call the woman who bears a child conceived from another woman's egg? I'm not even sure we know what to call the area under inquiry."

The answers are sometimes rich in emotional bias. "In some places, it's called 'unnatural reproduction'; in others it's 'abnormal reproduction,'" says Lori Andrews, a research attorney for the American Bar Foundation and author of New Conceptions, a guide to the new reproductive techniques. "We prefer 'artificial' or 'alternative reproduction,'" she adds. As for the increasing number of children born by these methods, there is no standard term at all.

The linguistic confusion echoes in the laws and theories applied to these various new methods of having babies. To some experts it seems nonsensical for such children even to be born at a time when high birth rates and burgeoning populations represent one of the world's most challenging problems. There are other paradoxes: the new techniques of fertilization are becoming almost commonplace, but there are no federal laws to guard against the dangers of exploitation and manipulation; nor is there federal financing to provide research guidelines. The state and local laws that do exist--many of them outdated--have sprouted into thickets of illogicality and contradiction. About all they have in common are moralizing judgments and a squeamish avoidance of controversial details. "It's a legal, moral and social nightmare," says Doris J. Freed, head of the American Bar Association's family-law section committee on research. "It's going to take years of debate, legislation, trial and error to figure out how to deal with these problems." Or, as Samuel Gorovitz, a professor of philosophy at the University of Maryland, summarized it for the House subcommittee chaired by Congressman Albert Gore Jr., "We have a patchwork of laws and gaps, stigmas, deprivations, uncertainties, confusions and fears."

For example: > Artificial insemination by donor (AID), or a woman being inseminated by a donor's sperm, has been widely practiced since the 1960s and has led to about 250,000 births in the U.S. alone, but the law is only gradually accepting it. A New York court ruled in 1963 that a child born by AID was illegitimate even if the mother's husband consented; another New York court ruled the opposite a decade later. Now 25 states, including New York, have statutes governing AID babies, recognizing them as the legitimate children of mother and her husband (providing the husband has consented to the procedure). Elsewhere, all kinds of consequences remain unsettled, however. After a divorce, can a sterile husband deny financial responsibility for an AID baby? Conversely, can such a husband be denied visitation rights?

> In-vitro fertilization (IVF) now accounts for about 100 babies in the U.S., but there are virtually no new laws to deal with this method of conception. In the wake of the 1973 U.S. Supreme Court decision legalizing abortion, however, many states passed laws forbidding or limiting "experimentation" with fetuses. Of the 25 such state laws, eleven specifically apply to embryos; doctors in some of these states fear that they might be prosecuted for carrying out the IVF, particularly if the technique fails, as it does about four times out of five. And six states have laws that seem to forbid freezing an embryo, on the ground that this would constitute illegal experimentation.

> Surrogate mothers have been bearing other people's children since the late 1970s, and the number of such births in the U.S. so far totals at least 100, perhaps 150, but the law here is even more ambiguous. No state has a statute specifically dealing with surrogates, but about a dozen have been considering measures ranging from permission to an outright ban. At least 24 states have old laws generally forbidding payment to a woman who gives up a child for adoption, as surrogate mother is expected to do. Moreover, private contracts between prospective parents and surrogate mothers may not be legally binding. Thus, if the surrogate refuses to give up the baby, or if the would-be parents refuse to accept it, the law offers no certain solution to the dispute.

These are only the basic complexities; the refinements are myriad. If a married couple can use a donor to help create a baby, for example, should a single woman who wants a child be allowed the same right? What about a lesbian, or a transexual or a homosexual male couple? If a surrogate mother contracts to bear another couple's child, does she have the right to smoke and drink in defiance of their wishes? Does she have the right to an abortion? And what of the baby born through such methods: Does it have a right to know its biological parents? Or even a right to inherit their property?

These are not idle flights of fancy. There have already been attempts by lesbians and transsexuals to acquire babies. And the varied fertility controversies that reach the courts are sometimes of a rending intensity. In New York City, for instance, a Florida couple named John and Doris Del Zio in 1973 became the first couple in the U.S. to attempt IVF. An infertility specialist removed an egg from Mrs. Del Zio, put it in a container and handed it to her husband, who raced across town in a taxi to deliver it to the Columbia-Presbyterian Medical Center. There, another doctor fertilized it with some of Del Zio's sperm and stored it in an incubator. The next day the hospital doctor was furiously scolded by his superior, Dr. Raymond Vande Wiele, who not only accused him of dangerous and unethical practices but also stopped the experiment entirely by unsealing the incubated container, thus killing the embryo. The couple sued the hospital and Vande Wiele and won $50,000 in damages. Yet when the hospital opened its own IVF program in 1983, Vande Wiele became its codirector.

In Michigan, Surrogate Mother Judy Stiver agreed to be artificially inseminated by Alexander Malahoff for $10,000. When the baby was born last year, it turned out to be microcephalic and mentally retarded. Malahoff insisted on blood tests that might show he was not the father. As a macabre touch, these test results were announced on Phil Donahue's TV show. They disclosed that Malahoff was indeed not the father; Stiver had had sexual intercourse with her husband at about the same time as the insemination. Now the baby is in the custody of the Stivers, and both sides are suing each other.

In Illinois, the first state to deal specifically with IVF, the legislature decided in 1979 to make any doctor who undertakes such a procedure the legal custodian of the embryo--and liable for possible prosecution under an 1877 law against child abuse. The result was that many Illinois doctors, though not specifically forbidden to perform IVF, refused to do so. The state attorney general said that most simple IVF procedures would not violate the law, so a number of doctors went ahead. Still, one couple, identified as John and Mary Smith, who have been married for nine years and have two adopted children, are challenging the Illinois attempt at regulation as unconstitutional. Their class action, due for trial in federal court in November, argues that such restrictions violate the fundamental right of "privacy," which the Supreme Court has proclaimed several times in its rulings on abortion, contraception and various aspects of procreation.

If the array of U.S. laws and regulations seems confusing, the legal wilderness abroad is totally bewildering. A group of West European justice ministers meeting in Strasbourg tried to work out some international policies on reproduction technology, but they gave up in despair. In Germany, where there are no laws either permitting or forbidding surrogate motherhood, a man in Bad Oeynhausen was fined $1,750 for advertising for a woman willing to gestate an embryo and then give the child up for adoption to a childless couple. Before he could find such a woman, he was fined because the law forbids any ads in connection with adoptions.

In Britain two years ago, Parliament established a 16-member committee of experts under Dame Mary Warnock to examine the social, ethical and legal implications of the new technology. Among its recommendations published in July: all clinics providing infertility services such as AID, IVF or egg donation should be licensed and regulated; research on embryos up to 14 days old could be permitted, also under license and regulation; but the use of surrogate mothers should be forbidden because such arrangements are "liable to moral objection." Critics on all sides did not hesitate to attack. A Roman Catholic spokesman called the practice of AID "morally unacceptable," while a newspaper columnist denounced restrictions on pregnancy as "ludicrously inconsistent." But unless such differences are settled, warned Sir John Peel, former president of the British Medical Association, society will confront "the brink of something almost like the atomic bomb."

The most striking illustration of Europe's legal confusion is the case of Corinne Parpalaix, 22, a secretary in the Marseille police department, whose husband died of cancer last year after depositing sperm in a sperm bank. Parpalaix asked for the sperm so that she could be impregnated with it, but the bank refused on the grounds that the dead man had left no instructions on what he wanted done. The press clucked; the church frowned; Parpalaix sued.

French law offered little guidance, and so the whole case rested on exquisitely philosophical arguments about what the dead man's frozen sperm really was. An organ transplant? An inheritable piece of property? State Prosecutor Yves Lesec, siding with the sperm bank, argued that it was part of the dead man's body, even though separated from that body. The dead man had a basic right to "physical integrity," the prosecutor concluded, saying in effect that his widow had no more right to his sperm than to his feet or ears. Not so, retorted Parpalaix's lawyer. The deposited sperm, he argued, -- implied a contract. Somewhat to the surprise of legal experts, the court last month agreed, ruling that this "secretion containing the seeds of life" should be given to Parpalaix. "I'll call him Thomas," she said of her prospective infant. "He'll be a pianist. That's what his father wanted."

There are elements of absurdity in such a controversy, and yet it derives quite directly from a broader question that is not absurd at all: When does human life begin? At the moment of conception, say many conservatives, both religious and secular. The Rev. Donald McCarthy, of the Pope John XXIII Medical-Moral Research and Education Center in St. Louis, argued sweepingly before the congressional hearings that there is "no evidence of a threshold, a starting point other than fertilization itself, for the beginning of human nature." This is a standard argument against abortion, but McCarthy used it to endow every new embryo with a panoply of civil rights. These included a right not to be frozen, a right not to be experimented on, a right not to be destroyed, even a right not to be created at all except as a consequence of "personal self-giving and conjugal love."

Neither current law nor current custom supports such an array of rights, however. On the contrary, a pregnant woman's right of decision is generally considered paramount, at least during the first three months. Even so, says Professor Maurice Mahoney of Yale's medical school, every embryo deserves a certain respect. "I see it as an individual human being," he says, "not with the same claims and rights as a newborn baby, but at least as an individual who calls upon me for some kind of protectiveness."

No case encapsulates all the ambiguities more dramatically than that of the late Mario and Elsa Rios, a Los Angeles couple whose orphaned embryos now lie in a freezer in Melbourne, Australia. Doctors there had removed several of Mrs. Rios' eggs in 1981, then fertilized them with sperm from an anonymous donor. Some were implanted in Mrs. Rios, and the remaining two were frozen. "You must keep them for me," she said. The implant failed, and the couple later died in a plane crash in Chile. Australian laws grant no "rights" to the two frozen embryos, but though local officials are believed to have the authority to destroy them, they have refrained from doing so. A state committee of inquiry is supposed to issue a report on the whole subject of reproductive technology this week.

The creation of extra embryos raises a number of delicate problems. Aside from the question of whether they have a "right" to be implanted (most experts deny it), doctors say they are needed for research. Some even favor creating embryos deliberately for the sake of research. But what exactly is "research"? Ideally, it is some experimental treatment that will help the embryo itself. Some states--Minnesota, for; example--prescribe that any experimentation must be known to be harmless. A number of authorities also believe that experimentation should be limited to the first 14 days after fertilization. There are scientists, however, who chafe at such restrictions on their research.

Beyond the argument about experimentation lies an even more touchy controversy: eugenics, the idea that the species can be improved through selective breeding. Now that it is possible to create human embryos by a process of selection among donor eggs and sperm, is it desirable to leave that selection entirely to chance? In one sense, doctors are already applying eugenics when they screen donors for genetic defects, a standard practice that many feel should become a lot more standard. In another sense, they are engaging in eugenics when they select medical students as sperm donors, a procedure that one survey showed to be happening in 62% of artificial inseminations. Says George J. Annas, professor of health law at Boston University: "Physicians in all of these situations are . . . selecting what they consider 'superior' genes . . . They have chosen to reproduce themselves."

The institution that most nearly fulfills the dubious idea of selective breeding is the Repository for Germinal Choice, of Escondido, Calif., which announced at its opening in 1980 that it would use sperm donated by Nobel prizewinners. The repository has received the cooperation of only three such prizewinners and now relies on donors of less than Nobel stature, but Founder Robert Graham is as enthusiastic as ever. "We're proud of our results," says he of the repository's 15 children. "These kids will sail through schools. We are indicating how good human beings can have it."

Given a choice, most parents would probably prefer a bright child, but intelligence is hardly the only variable. Many sperm banks now offer prospective parents some options on what the collaborating donors look like, on the ground that it is preferable for the child to resemble its legal parents. From there it is only a short step before some parents try to choose blonds instead of brunets, or boys instead of girls. A German clinic in Essen claims that its sperm donors include "no fat men, no long ears, no hook noses . . ." "We can talk in impressive pseudoscientific terms about how we want to help society," says the Rev. Roger Shinn, professor of social ethics at New York's Union Theological Seminary, "but as long as genetic manipulation is the motive, what we would be doing is what Hitler intended to do."

There are also tricky questions posed by the financing of the new technology. Dr. John Buster of the UCLA School of Medicine has been working since 1979 to develop a technique of embryo transplants for women who are unable to conceive but able to carry a child to term. The husband's sperm is used to impregnate a woman artificially; the embryo is then flushed out and implanted in the man's wife. The first two babies to be produced by this method were born this year.

"We called the National Institutes of Health in 1980, and we were told that no money was available for this work," says Buster. "The people who make these decisions are politicians, and they have to make those decisions to remain in office. After all, infertility never killed anyone." So Buster made an alliance with Randolph Seed, a surgeon, and his brother Richard, a scientist who had experimented in cattle breeding. The Seed brothers' Chicago firm, Fertility and Genetics Research Inc., invested $500,000 in Buster's UCLA project, and they have applied for a patent on the process. Despite criticism of this arrangement by a number of doctors, Richard Seed declares, "This is a typical free-market activity. We have investors expecting to obtain a return on their money."

In such a free-for-all atmosphere, the courts have been increasingly forced to intervene. A typical case was Syrkowski vs. Appleyard in Michigan. George Syrkowski and his wife had contracted to pay Corinne Appleyard $10,000 to bear his child, but a state court refused to recognize him as the father. Detroit Circuit Court Judge Roman Gribbs ruled in 1981 that surrogate arrangements are not for a court to approve but are "matters of legislative concern." However, Michigan has no state laws regulating the hiring of surrogate mothers, an omission that Richard Fitzpatrick, a Democrat in the state legislature, has been trying to correct for three years. His latest attempt is a comprehensive proposal requiring that all births involving third parties be covered by contracts, and that the "societal parents" (i.e., those who plan to rear the baby) have "all parental rights and responsibilities for a child, regardless of the condition of the child, conceived through a fertility technique." At the same time, another Michigan legislator has drafted a rival law making all surrogate parenting a crime punishable by up to 90 days in prison and a $10,000 fine for a first offense. Both legislators hope the issue will come to a vote this fall--presumably after Election Day.

Political caution about what voters want--together with the legal uncertainties about invasions of privacy--are likely to continue to inhibit government action in a field where some guidelines seem sorely needed. Congressman Gore, a Tennessean with four children aged eleven, seven, five and two, is keenly aware of the mixed feelings that the new technologies can arouse. Says he: "There is something unnatural, even violent, about a procedure that takes a newborn from its mother's arms and gives it to another by virtue of a contract. But I don't think I'm in favor of outlawing it. The touching search for children may justify a great many things that make others of us who are more fortunate uncomfortable."

--By Otto Friedrich. Reported by Anne Constable/Washington and Raji Samghabadi/New York, with other bureaus

With reporting by Anne Constable, Washington, Raji Samghabadi