Introduction to the Symposium

• Author: Lance Tibbles
• Position: Professor of Law & Director of the Ethics Institute, Capital University Law School
• Pages: 1-12

Professor of Law & Director of the Ethics Institute, Capital University Law School. B.S. With Honors & LL.B. University of Oregon. I wish to express my appreciation to the Editorial Board of the Capital University Law Review for its work in presenting both the Sullivan Lecture and the Sullivan Symposium. In addition, Ms. Jessica Poprocki, our Special Projects Director deserves special recognition. Mr. Mark A. McGinnis, a third year law student, provided much appreciated research assistance.

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"Thinking About Biomedical Advances: The Role of Ethics & Law," the Twenty-third Annual John E. Sullivan Lecture held at Capital University Law School on October 19, 2001, made clear that analyzing bioethical issues benefits from interdisciplinary approach. Capital's Sullivan Lecture was established in honor of Professor Emeritus John E. Sullivan, a dedicated teacher and scholar who, after coming to the Law School in 1953, also served as acting dean and academic dean during his 35 years at Capital. The Sullivan Lecture is presented each academic year by a distinguished scholar who addresses a matter of significance to the Law School, the legal community, and to society in general. When Professor Sullivan joined the Capital faculty in 1953, in thinking about biomedical advances was not on the radar screen of anyone in medicine, law, or ethics. Now the topic is a standard part of the curriculum of every medical school, law school, and university philosophy department.

Those attending the Sullivan Lecture were likely to notice immediately that diversity is an integral part of the domain that we now commonly refer to as "Bioethics." Diversity was apparent in the audience, which included faculty and students from many academic disciplines, professionals from several disciplines, and individuals with various cultural and religious backgrounds and a wide range of ages and life experiences. The audience, in fact, was representative of our pluralistic society, a society where everyone regularly confronts issues of life-prolonging medical treatment, genetic manipulation, mind and behavior control, assisted reproduction, organ transplantation, and research involving human subjects. This diversity was also represented in the speakers - two lawyers, two physicians, and one ethicist - presenting a diversity of approaches to this multifarious area. This diversity offers many perspectives from which to probe the dilemmas and paradoxes with which biomedical advances confront us.

The importance of biomedical technologies in our social framework and in our professional and individual lives has increased dramatically in the past quarter of a century. When I first started teaching a law school course in Bioethics & Law, I searched the newspapers for news items about bioethics issues to show the students that the course had some relationship to at least a few things that were happening in the real world. For the past several years, I could teach the course almost solely using stories appearing on the front page of any major metropolitan newspaper. Issues that were discussed theoretically in the earlier course materials now appear weekly, if not daily, in front page news stories wrapped in the new dilemmas and paradoxes that thePage 2 "new biology" asks us to resolve. As this issue goes to press there are unverified reports of the world's first cloned human.¹

In addition, many traditional law school courses now include issues raised by biomedical technologies that were originally addressed by those working in bioethics. The most traditional first year law school course - property - steeped as it is in the rustic lore of English feudalism, now contains a section on the human body as property and questions about whether a person can have a property interest in her own body or body parts.² Even the venerable Rule Against Perpetuities now poses new problems of "lives in being." The Rule assumes that a person cannot have issue more than a gestational period beyond his death. But it is now possible to collect, freeze, and later use human sperm long after the male has died.³ The course in Torts now deals with the nuances of "informed consent,"⁴ as well as whether a human research subject has a cause of action for injuries incurred in the course of the research.⁵ What is the appropriate standard of care for an experiment that has never been tried before? The course in Contracts may need to address the issues involved with the enforceability of so-called "surrogacy" contracts for one party to bear a child and hand it over to the other contracting party.⁶ The course in Family Law now deals with the variety of "assisted reproduction" technologies and the implications on legitimacy, custody, duties of support, and the overarching issue of what constitutes a "family."⁷ Who is a "parent"Page 3 and how many parents can one child have?⁸ The course in Constitutional Law addresses the twin issues of: (1) whether the state can compel a citizen to use a biomedical technology, such as psychotropic drugs for those considered mentally ill,⁹ or respirators or artificially administered nutrition and hydration for those who can no longer breathe, eat, or drink on their own,¹⁰ and (2) whether the state can deny a citizen a biomedical technology when there is a willing buyer and a willing seller, for example physician-assisted suicide,¹¹ cloning,¹² or the seemingly intractable issue of abortion services.¹³

Bioethics has not only made its way into the mainstream law school curriculum, but it can furnish the tools for a robust "legal systems" or "legal process" course - either an introductory course in the first year or a capstone course in the last year of law school. A quick example will suffice. As part of the in vitro fertilization process for reproduction purposes some of the preembryos created may be frozen for later implantation. But sometimes the progenitors encounter an unanticipated contingency, such as divorce, while some of the frozen preembryos remain unused. How should the legal system resolve a dispute when one of the divorcing progenitors wants to implant the preembryos or to donate them to another party and the other progenitor objects and wants the preembryos destroyed?

A court might choose the polar position: all preembryos must be used by the gamete providers or donated from implantation, or the other polar position, any unused preembryos must be discarded. Or a court might find anPage 4 "implied contract" to use a particular method of disposition from the parties' enrollment in an in vitro fertilization program. Or the court might either divide the preembryos equally or award veto power to one of the parties. How courts recognize and balance the conflicting values at stake, how courts create law when resolving disputes, how constitutional issues intertwine with common law analysis, and how public law and private law intersect can be poignantly explored through this dispute previously unknown and unanticipated.

In addition, development of the common law can be traced by analyzing the (only) four major cases decided to date in the U.S. In the 1992 Tennessee case of Davis v. Davis,¹⁴ the first case to confront this issue, the Tennessee Supreme Court held that if there is a dispute between the progenitors, the court should carry out any prior agreement concerning the disposition of the frozen preembryos. If there is no prior agreement, then the relative interests of the parties must be weighed and, ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by other means.

Six years later in Kass v. Kass,¹⁵ the progenitors' consent form signed at the time of the in vitro fertilization provided that the frozen preembryos were to be released from storage only upon the written consent of both parties. In the event that the parties were unable to agree regarding disposition, the preembryos were to be used by the infertility program for research. When the progenitors later divorced and disagreed on disposition, the New York Court of Appeals, building on the Tennessee Supreme Court's preference for upholding a prior agreement, upheld this agreement.

In 2000, when the progenitors divorced and disagreed on disposition of the frozen preembryos, the Supreme Judicial Court of Massachusetts, in A.Z. v. B.Z., found the consent form legally insufficient and refused to enforce it. The court said that even if the agreement had been unambiguous, as a matter of public policy the court would not enforce an agreement that would compel one donor to become a parent against his or her will. Here the husband objected to his former wife's "utilizing" the preembryos. However, the court expressed no view about enforcing an unambiguous agreement between the progenitors over the contemporaneous objection of one progenitor when the agreement contemplated either the destruction or donation of the frozen preembryos for research or implantation in a surrogate.

To complete the circle, in 2001, in J.B. v. M.B.,¹⁶ the New Jersey Supreme Court held that the progenitors' consent form and attachment did not manifest a clear intent regarding disposition of the frozen preembryos in the event of their divorce. Building on the part of the Tennessee Supreme Court's opinionPage 5 that held that the party wishing to avoid procreation should prevail, the court adopted a...