In vitro fertilization and the right to procreate: the right to no.

• Author: Sieck, William A.

INTRODUCTION

Unable to conceive by sexual intercourse, a woman and her husband are now pregnant with their second child. How? Her eggs were fertilized by his sperm in vitro--in a laboratory. Some of these fertilized eggs were implanted into her uterus, while others were frozen to make future attempts possible. The couple's success with in vitro fertilization ("IVF") gives them an opportunity to be parents, but leaves them with a difficult decision. They still have seven more frozen embryos. He is happy with only two children, while she wants to try to use the frozen embryos because they are made from the couple's eggs and sperm. Despite their differences, the couple is not worried about resolving the matter because they "trust each other." For other couples, however, trust has been insufficient when spread thinly over broken dreams.(1) These couples, too, were unable to conceive through intercourse. The enormous expenditures of time, energy, and money required by the IVF process, however, were unavailing. When these unsuccessful couples have divorced, disputes over the disposition of the frozen embryos have not been easy to resolve.(2) For example, one person sought custody, claiming one last, best chance to become a parent. The other person objected strenuously, fearing both the financial burden of mandatory child support payments and the emotional burden of separation from children whose existence was imagined only within marriage.(3)

Two state high courts have decided such disputes, each reaching a similar result.(4) Although the courts applied different analytical approaches,(5) both articulated a preference for a contract framework to resolve the competing claims of the divorcing spouses.(6)

This Comment argues that contract analysis, as between prospective parent-donors, is inadequate and inappropriate for resolving disputes over frozen embryos. Further, the interests of the parties ought not be balanced. Rather, the right to veto implantation should inhere in each party. Thus, in the absence of contemporaneous, mutual consent, the embryos of a married couple must not be implanted and those of an unmarried or divorced couple must either be discarded or donated for research.

Part I provides background information regarding the need for and nature of IVF. In Part II, the legal issues implicated by dispositional disputes are elucidated and explained. Part III details the facts and frameworks of the Davis and Kass decisions. Part IV analyzes and rejects the preference for contract frameworks. Part V then considers the rights and policies involved in IVF disposition disputes. This Comment advocates a bright-line approach which would permit either party to veto further attempts at IVF and would require that the embryos be discarded.

1. THE WHAT AND WHY OF IN VITRO FERTILIZATION

   Many couples are unable to have children(7) for varied and complicated reasons.(8) In 1978, however, Louise Brown, the first "test tube baby," was born, and the world learned that infertility could be countered.(9) In the last twenty years, the development of alternative reproduction technologies ("ARTs"), including IVF, has provided an opportunity for many couples to bear children who share the couple's genetic blueprints.(10)

   IVF is a process whereby a woman's eggs are fertilized by a man's sperm with surgical medical assistance.(11) Generally, the first stage of the process is a controlled ovarian hyperstimulation, designed to produce large quantities of eggs.(12) There exists a positive correlation between the number of eggs produced and pregnancy rates.(13) After the eggs have been produced, they are retrieved surgically in a procedure known as "aspiration."(14) The retrieved eggs are then inseminated, and those that are fertilized are incubated for one to three days before they are ready to be implanted in the woman.(15) At the time of implantation, the fertilized eggs may be zygotes, preembryos, or embryos.(16) The differences are biologically significant, but do not alter the legal analysis.(17)

   There is another positive correlation between the number of embryos transferred or implanted and the rate of pregnancy.(18) As greater numbers of embryos are implanted at one time, however, multiple pregnancies become more likely, which pose risks to a woman's health.(19) The tension between increasing pregnancy rates and protecting a woman's health has been eased by the ability to cryopreserve embryos in excess of the number to be implanted.(20) These embryos remain frozen, awaiting future use.(21)

   The ability to produce, fertilize, and preserve a number of eggs in one aspiration makes the IVF process less physically demanding on a woman and more promising for a couple. When the donors disagree with each other about the disposition of their frozen embryos, however, serious legal questions arise. Before considering the leading appellate decisions concerning the disposition of fertilized eggs, Part II briefly describes the principal legal issues involved.

2. LEGAL FRAMEWORK AND ISSUES INVOLVED

   IVF permits time to lapse between the fertilization of a woman's eggs and conception.(22) This Comment focuses on disputes between once-married donors with respect to custody and disposition rights over frozen embryos. These particular cases involve three questions. First, what is the legal nature of a frozen embryo? Second, should a couple's prior agreement matter in deciding disputes once the couple is no longer married? Third, if a prior agreement is inappropriate, inadequate, or unavailable, how should courts decide disputes over disposition?(23) Subpart A provides a simple overview of the legal nature of a frozen embryo. Subpart B then explores and interprets the relevant federal constitutional doctrine surrounding the rights of the family and the right to procreate.

   1. A Frozen Embryo: Person, Property, or Special Respect?

      Fertilization outside the body is a recent phenomenon which raises legal, moral, and ethical dilemmas. Central to these dilemmas is a disagreement as to what a frozen embryo is. The growing literature on this subject suggests that there are three essential beliefs about the ontological reality of frozen embryos: person, property, or something other.

      First, some argue that the embryo is a person.(24) This analysis assumes that a human being exists at fertilization.(25) Statutes in at least two states articulate this perspective.(26) Such a definition of human life suffers from two sharp criticisms. First, it does not recognize the biological and developmental differences that characterize early life.(27) Second, this view is in tension with clear statements of the Supreme Court that pre-viable(28) embryos do not possess the rights of a "person" for purposes of the Federal Constitution.(29) Consequently, according to the Supreme Court view, the embryo has no rights which would impair those of a "person" under the Constitution.(30)

      The second ontological possibility is that the preembryo is property.(31) A property analysis focuses on the rights and interests of ownership and control which inhere in certain interested parties, usually the donors.(32) In 1984, the American Fertility Society issued a statement that "gametes and concepti [preembryos] are the property of the donors. The donors therefore have the right to decide at their sole discretion the disposition of these items...."(33) Several objections to a broad property analysis are in order. First, this view does not resolve disputes between the individuals who donated the gametes. Such a perspective may be inadequate where, for example, property of the marriage ordinarily would be divided evenly between the parties.(34) Second, unlike commercial goods, a frozen embryo possesses potential for autonomous human life not subject to the property rights of alienation, use, or exclusion.

      A third ontological approach advocates the view that embryos are entitled to special respect, permitting limited donor discretion over preembryo disposition.(35) In 1986, the American Fertility Society clarified its position on the status of preembryos and announced that "the preembryo deserves respect greater than that accorded to human tissue but not the respect accorded to actual persons."(36) This "special respect" is derived from both the preembryo's "potential to become a person and ... [from] its symbolic meaning for many people."(37) This view is certainly the favorite among commentators(38) and accords with both state court (39) and Supreme Court precedent.(40)

      The special respect view seems to be the most persuasive. It recognizes the dynamic nature of the embryo and the effect that flux has on the interests of the donors, the clinic, and the State.(41) This view attempts to balance both present and future, individual and social interests.(42)

      As explained in Part V, the special respect perspective may be the best way to think of IVF and disposition disputes constitutionally. Although this perspective preserves a sphere of consensual decision-making, it limits the zone of privacy when it implicates the actual or potential rights of third parties. The constitutional consideration is necessary in part because of its relevance to privacy and procreation and in part because the Constitution provides an enduring threshold.

   2. Constitutional Rights to Privacy

      In 1973, the Supreme Court recognized a woman's right to terminate an unwanted pregnancy as an exercise of her right of privacy in matters of procreation.(43) Five years later, Louise Brown was born, the first child fertilized ex utero.(44) Thus, a right construed to limit reproduction was succeeded by a new means of reproduction. Ironically, the right to privacy, so central to the right to abortion,(45) is now strongly implicated by the confluence of technological development and a powerful desire to bear children.(46)

      Courts and commentators alike have evaluated IVF dispositional disputes between divorced spouses by...