The Rights of Frozen Embryos

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.

With reporting by Mary Cronin/New York and Frank Feldinger/Los Angeles