The Legal Status of the Ex Utero Embryo: Implications for Adoption Law

• Author: Katheryn D. Katz
• Position: Kate Stoneman Professor of Law and Democracy, Albany Law School, Albany, New York. A.B., University of California, Berke
• Pages: 303-340

Page 303

Introduction

It has been more than thirty years since human conception was first externalized and human embryos created ex utero in the process known as in vitro fertilization (IVF).¹ This advance in the treatment of infertility requires hyper-stimulation of the ovaries in order to retrieve sufficient numbers of eggs for attempts at IVF.² Furthermore, more embryos are created than can safely be transferred to the woman's body for implantation in any one cycle of IVF.³

Before the cryogenic preservation of embryos became a reality, the woman undergoing IVF was subjected to the rigors of repeated egg-retrieval Page 304 procedures.⁴ Freezing unused embryos, however, is now standard practice at most fertility clinics.⁵ The ability to freeze embryos allows the creation of more embryos than are required for implantation at any one treatment cycle while preserving the option of future pregnancies and avoiding the destruction of the unused embryos.⁶

The progenitors have a number of options for the disposition of their frozen embryos.⁷ They may use the embryos for attempts at a future pregnancy, donate them to be used for research, give them to another couple who hopes to initiate a pregnancy, leave them in cryostorage indefinitely, or request that they be discarded.⁸ Many of the individuals with unused embryos feel that none of the available choices for disposition of the stored embryos are "ideal or even acceptable."⁹ Keeping the embryos cryopreserved, therefore, is a way to avoid making a difficult and distressing decision. At present there are approximately 400,000 frozen embryos in storage in the United States.¹⁰ Both their sheer number and the length of time that embryos have existed would suggest that we have reached closure on the question of their legal status. That is not the case, however. As the vigorous and at times Page 305 contentious debates over stem cell research demonstrate,¹¹ there is assuredly no consensus as to the moral status of these preimplantation embryos, and questions of their legal status are inextricably combined with the issue of their moral status.

The constitutionalization of abortion law made evident the scientific, ethical, religious, political, and social controversy engendered by the question of when human life begins.¹² This controversy has extended beyond fetal life to the ex utero embryo.¹³ Questions of the morality of government funding for stem cell research have intensified the debate.¹⁴ Views on the moral status of the ex utero embryo range across a wide continuum. Arguing the embryo has a unique genome and is capable of becoming a child if all goes well, many believe that the embryo is the equivalent of a born human being even if it is in storage.¹⁵ They believe that "[f]ailure to show full respect for embryonic life is to de-value all human life."¹⁶ Supporters of this view oppose stem cell research and embryo freezing,¹⁷ and some espouse embryo Page 306 donation of surplus embryos and/or their mandatory transfer to other women's uteri for attempts at pregnancy.¹⁸

At the other end of the continuum is the view that the ex utero embryo is just another type of bodily tissue, nothing but a clump of cells.¹⁹ Because these cells lack sentience, have no interests to be protected, and are neither conscious nor self-conscious, embryos enjoy no moral claims of their own.²⁰Some scholars find significance in the fact that "[t]he fertilized egg in vitro cannot develop into a fetus 'all by itself.'"²¹ Almost everyone concedes, however, that the gamete providers should have dispositional authority over their embryos.²² So long as the progenitors consent, there should be no limitation on the use of the embryos.²³ An intermediate position holds that because of the embryo's potential for human life and its symbolic meaning to many, it is to be accorded greater respect than other human tissues.²⁴ In many instances, the progenitors themselves disagree with each other as to the moral status of the embryos which they have created together by the union of their eggs and sperm.²⁵

Despite the lack of consensus on the moral status of the embryo, courts have been forced to determine the legal status of the ex utero embryos in a variety of contexts. In the usual case, the court has no legislative guidance at either the state or federal level.²⁶ In fact, there is more legislation dealing Page 307 with the as-yet-unrealized prospect of human cloning than there is legislation addressing the reality of hundreds of thousands of existing embryos.²⁷ In this Article, I examine the legal characterization of ex utero embryos in the United States to date. Just as with the debate over their moral status, the controversy over the legal characterization of cryopreserved embryos has yielded diverse and opposing views. I consider the implications for reproductive freedom and adoption law that follow from the legal definitions of the ex utero embryo, whether as a person, property, or as an interim category entitled to special respect. The unregulated practice of donating surplus embryos to other couples for attempts at pregnancy is of particular interest because in some ways it parallels the adoption of born children, or would if the law permitted prepregnancy adoption.

I conclude that defining embryos as persons, if carried to its logical extreme, will have a profound effect not just on reproductive issues, such as the law of abortion or the use of IVF, but also upon adoption law and practice. Eventually embryo donation to other couples will come under the control of the state, rather than be a medical matter as it is now. If embryo donation remains primarily a medical matter, supporters of the current system of adoption laws and regulations may have to justify the system's control over eligibility for adoptive parenthood.

I Choice of Terms: Why it Matters

The disagreement over the moral and legal status of ex utero, fertilized eggs is reflected in the debate over the proper nomenclature for these entities. The courts believe that semantical distinctions matter greatly in this area.²⁸"There is an almost magical power in naming things,"²⁹ and "[l]anguage both reflects and shapes the public perception of biomedical truths."³⁰ The word that is chosen to describe the fertilized egg may affect perceptions of when Page 308 life begins³¹ or may reflect the user's view as to the developmental stage at which society should consider a human life to begin.³² Some ethicists and scientists use terms such as "proto-embryo,"³³ "'pre-implantation' embryo[,] and 'pre-embryo'"³⁴ to refer to eggs fertilized ex utero and not implanted in a womb.³⁵ Some refer to these eggs as embryos, but as the Arizona Court of Appeals noted, "Referring to a cryopreserved three-day old fertilized human egg as an embryo can imply that the egg is a 'person.'"³⁶ Of course, in many instances the ones referring to the fertilized egg as an embryo fully intend the inference of personhood.³⁷ Conversely, many scientists and ethicists hold that a fertilized human egg is not an embryo until it is implanted in the uterine wall and develops for two weeks.³⁸ In fact, even among research scientists the word embryo lacks a fixed meaning.³⁹ It must be noted, however, that the International Committee Monitoring Assisted Reproductive Technologies (ICMART) defines embryo as the "product of conception from the time of fertilization to the end of the embryonic stage eight weeks after fertilization."⁴⁰ Moreover, ICMART states that embryo has replaced "pre- embryo" and "dividing conceptus."⁴¹

Several state courts have had to resolve issues of the disposition of stored cryogenically preserved embryos when the divorcing gamete providers could Page 309 not agree.⁴² As the first order of business, however, the courts had to determine the proper designation for the fertilized eggs at the heart of the dispute.⁴³ This determination requires recourse to medical dictionaries, embryology texts, and genome studies.⁴⁴ In some instances, the parties contending for control of the embryos suggested different descriptive names-names reflecting their differing views as to the status of their fertilized eggs.⁴⁵ In one case, a spouse argued that "the term 'child,' rather than 'pre-embryo,' is the correct term and concept for the court's consideration."⁴⁶

If the cryopreserved embryo is, in fact, a child, then the court must use a best interest of the child analysis in determining which party should be given dominion over the embryos.⁴⁷ No state high court, however, has taken the position that a frozen embryo is a child;⁴⁸ although trial court judges have used the terminology "children" and held that the law governing child custody disputes, including support, visitation, and final custody, apply in a dispute between the progenitors.⁴⁹ One trial court appointed a guardian ad litem to file a parenting investigation report for the frozen embryos-embryos that the judge considered children.⁵⁰

In Davis v. Davis, the first decision involving a dispute between divorcing progenitors over custody of cryopreserved embryos,⁵¹ the trial court judge rejected the term "pre-embryo" as serving "as a false distinction between the Page 310 developmental stages of a human embryo."⁵² Instead, the judge referred to the divorcing couple's fertilized eggs as "children, in vitro"⁵³ and found that "human life begins at the moment of conception."⁵⁴ The trial judge's findings were based on the expert testimony of Dr. Jerome Lejeune, a renowned French geneticist, who referred to the fertilized eggs "as 'early human beings,' as 'tiny persons,' and as his 'kin.'"⁵⁵ Dr. Lejeune also testified that "he was deeply moved that . . . 'the...