|
Spring 2002
|
HEADLINE:
Embryonic Confusion; When you think conception, you don't think product
liability. Think again.
BYLINE: Lori B. Andrews
Four years ago, I got a call from an infertility specialist who was
in the midst of a procedure. He was just about to transfer an embryo
created by a childless couple's egg and sperm to the woman who had
volunteered to carry the baby for them. But he suddenly had second
thoughts. "I've got an embryo from a couple in a catheter," he
told me hurriedly. I pictured him, catheter in one hand, telephone
receiver in the other. "I'm about to implant it in the surrogate,
who is the husband's sister," he explained, and wanted to know if
it would violate his state's ban on incest. If he decided not to go
through with the implantation and the embryo died, he asked, could he be
found guilty of murder?
As a lawyer
specializing in reproductive technologies for the past two decades, I've
become used to such calls, and I shared this doctor's frustration about
how little law there existed in the courts, judges applied the rules
governing horses and buggies. When computer software was introduced,
judges looked to doctrines covering printed books. But where should we
turn for precedents to cover entirely new medical questions, involving
the handling of human embryos, for example, or the sale and bartering of
genetic material? What should I tell the doctor who asked me recently
whether a woman has a right to her dead husband's sperm? And now that a
child can have three mothers (genetic, gestational and rearing), who is
responsible when all--or perhaps none--want the child? While much
attention has been focused on the special problems involving the
multiple births created by fertility clinics--septuplets, octuplets--less
attention is given to the question of multiple parents, and the disputes
that can arise when something goes wrong.
Since the 1960s, the courts sometimes have been called upon to determine
parenthood when a third party, such as a sperm donor, has been used to
help solve fertility problems. Thirty years later, the case of a
California couple, John and Luanne Buzzanca, has added further
complications to the equation. When they were unable to conceive, they
hired a sperm donor, egg donor and a surrogate mother. The resulting
baby girl had five parents, including the Buzzancas. But the couple's
marriage soured during the pregnancy, and although Luanne planned to
raise the baby, John claimed he shouldn't have to pay child support
because he was not the biological father. The lack of precedent led the
trial judge to throw up his hands and rule, astonishingly, that the
child, Jaycee, had no legal parents. The California Court of Appeals was
both more creative and more practical, saying in a 1998 opinion,
"We disagree. Let us get right to the point. Jaycee never would
have been born had not Luanne and John both agreed to have a fertilized
egg implanted in a surrogate." The higher court was willing to make
new law and rule that John's intent to be a parent was enough to hold
him responsible.
Most courts
try, however, to fit new reproductive technologies into old laws. But
the pigeonholes that judges choose vary from state to state. When a
surrogate mother changes her mind and decides to keep the child, some
states retrofit adoption law--which allows birth mothers to change their
minds--and award custody of the baby to the surrogate. Other states
apply contract law--enforcing the original agreement drawn up between
the parties--and award the child to the couple. (In the District of
Columbia and Maryland, it is unclear how courts would determine custody
in surrogate mother cases when the surrogate's own egg is used. In
Virginia, however, a state law makes the couple the legal parents unless
the surrogate changes her mind within the first six months of
pregnancy.)
Nowhere is the
lack of precedents more complicated than in dealing with frozen embryos.
The fertility drugs given to women in IVF programs sometimes create more
embryos than can be implanted safely. This has resulted in more than
150,000 embryos suspended in liquid nitrogen tanks (with 19,000 more
added each year). What will their fate be? Who gets custody in a
divorce? What happens if both parents die, or can't be contacted to make
decisions about an embryo's fate? As many as 20,000 frozen embryos are
the subject of disputes, according to New York state Sen. Roy Goodman,
who in 1997 chaired hearings in Albany on the topic. And judges are left
struggling with whether to apply precedents governing people or
property.
I saw firsthand the problem with legal precedents when I handled a case
for an in vitro patient, Risa York. She had an embryo frozen at a
Virginia clinic and wanted to transfer it to her new doctor in
California. When the Virginia clinic refused, York was stunned.
"They're holding my baby hostage," she told me, asking me to
sue the clinic on her behalf. We did in 1988. Using York's line of
thinking, we might have chosen to label the embryo a "person"
and charge the clinic with kidnapping. In fact, a trial court in
Tennessee had ruled that a divorcing couple's seven embryos were
"children" and had a right to be born. But I saw downsides
with implying that embryos were people. Income tax laws, for example,
would be turned topsy-turvy; if a couple had 14 embryos frozen, they
would be entitled to 14 exemptions. And more important, treating embryos
as people would turn abortion (and even unsuccessful IVF) into homicide.
Luckily, the Tennessee judge's decision was reversed on appeal, and the
Virginia judge in our case did not declare embryos to be children. Our
judge held that property law applied, in a ruling that is still the
Virginia precedent today. He returned the embryo to the couple using the
same legal principle that requires a parking garage to return a car.
But the property analogy doesn't seem to fit human embryos. What would
that mean in a divorce case? Would the embryo be part of the division of
property? Honey, if you get the stereo, I get the embryo.
What the property analogy clearly does is to accentuate the trend to
view the children of reproductive technology as consumer goods, leading
to a whole new set of social and legal problems. I have encountered
couples who create a blueprint for their brave new baby by seeking a
sperm donor from the Nobel Prize sperm bank that was started by Robert
Klark Graham in 1979 in Escondido, Calif., or choosing a surrogate
mother with particular traits. One couple I met wanted an egg donor who
was a cellist. They wouldn't accept a donor who played any other musical
instrument. As sperm, eggs and embryos are treated more and more like
consumer products, people's expectations increase about the resulting
children--and the law is called in when they are disappointed. At one
clinic, a couple who sought sperm donation settled on Donor Number 183
who, like the husband, had dark curly hair and brown eyes. But when the
resulting triplets were born, one of them had red hair. DNA tests later
revealed that Donor 83, rather than 183, was the genetic father. (Both
donors had been medically screened. In fact, Donor 83 had been on the
couple's short list of four donor finalists. His sole deficiency: He had
straight auburn hair and green eyes.)
Many people would have been happy to have three healthy kids. This
couple sued the clinic for compensation. The wife testified at trial
that she could say "with probability" that children of Donor
183 would have been more attractive than her children, even though she
had never seen either Donor 83 or Donor 183 and had made the choice
based on a description that was just a few lines long. The couple lost,
but in a 3-to-2 appellate decision. What next? Will the couple who paid
$ 50,000 for an egg from an Ivy League student sue if the child isn't
doing algebra by kindergarten? If a couple seeking a baby boy undergo
sex selection at the Genetics and IVF Institute in Fairfax (one of the
few places in the country that offers the service) and get a girl
instead, can they sue for the lifetime difference in earnings between a
female and a male? When these developments prompt court cases, the
judges almost invariably implore legislatures to develop new guidelines.
A Kentucky judge's plea was typical: He said that trying to address
surrogate motherhood under existing law was like trying to fit a square
peg in a round hole. This year in the United States, some 75,000 infants
will be born as a result of reproductive technologies--more than twice
as many as will be available through traditional adoption. Yet while
there are pages of adoption laws on the books in each state, only three
states--Florida, Virginia and New Hampshire--have enacted legislation to
address reproductive technology in any comprehensive fashion.
That makes my
job as a lawyer feel a little like writing science fiction--trying to
imagine the future problems and creating new legal approaches to deal
with them. We need clear rules, as the California appeals court
suggested when it made the intended parents of Jaycee Buzzanca her legal
parents. But we also need to keep courts out of product-liability type
cases in which parents claim the children they have created don't meet
their expectations. In the real world, even a high-tech real world, no
one should expect kids to come with warranties. Lori Andrews, a
professor at Chicago-Kent College of Law and director of the Institute
for Science, Law and Technology, is the author of the just-published
book, "The Clone Age: Adventures in the New World of Reproductive
Technology" (Holt).
|
Course
Overview