Frozen Embryos: Property or Persons?


THE divorce contest between Mary Sue and Junior Davis is over custody and property - but it is mostly that which is in a dish. This Tennessee couple's much-publicized case centers not primarily around houses, cars, and young Davises but on seven eggs extracted from Mary Sue, fertilized by Junior, and sitting in a dish in a freezer.

All might have gone smoothly if the couple had stayed together and a baby resulted from the implanting of the embryos in the wife's body. Mary Sue still wants to pursue this method of reproduction. She has been unable to conceive a child in the usual way, and she thinks her estranged spouse is the only suitable male donor. Junior, however, is eager to make a clean break from the marriage and no longer wants a part of this parenthood.

The Davis case puts a new twist in the emergence of reproductive technology. The controversy over frozen emybros was aired in the early 1980s in Australia in connection with an inheritance disposition after a plane crash that killed a California couple. An Australian law ultimately allowed their disputed embryos to be implanted in another woman.

United States policy regarding in vitro fertilization and surrogate motherhood became an issue again several years ago in the Baby M case, when the New Jersey's Supreme Court invalidated a surrogate contract between a married couple and a woman who bore a child for them. The New Jersey tribunal allowed the couple to keep the child over the biological mother's objection, but declared the practice of surrogacy bad public policy.

Public acceptance of the use of frozen embryos is developing slowly, as it is with surrogacy. Most states have no statutes in this area. Six prohibit experimenting on embryos, including freezing them. A Louisiana law regards fertilized eggs a form of human life and prohibits their destruction.

The custody of the seven eggs is central to the Davises, but it raises broader questions for society. Among them: What is the legal status of embyros? Are they human lives, which enjoy constitutional protection, or property to be disposed of like houses and stocks? Who has custody of an embyro formed outside a woman's body - the egg producer or the sperm giver? And under what circumstances may an embyro be sold, given away, or destroyed?

Some groups, among them the American Fertility Society, have developed ethical guidelines for handling frozen embyros.

The issue of when human life begins, which often dominates the abortion debate, is also central to the embyro issue.

One must have great compassion for couples who seek to have children but are unable to conceive them. Adoption is becoming less and less feasible for many couples because fewer children are available through this avenue. Biotechnology now makes it possible for infertile couples to bear children. A flat rejection of this idea may not be in order.

In the end, however, it is not how the law views embyros that is of prime interest to society. More important is the sanctity of human life.

Families are not made by biology or technology. Surely, the situation with the Davises illustrates this. Children are molded by love and caring - whether their origin is natural biology, adoption, or some form of reproductive technology.

A baby may be conceived in a dish, but it is the family that nourishes it.

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