Brave new world of reproductive rights

At one point, they both wanted to be parents. After a number of unsuccessful treatments for infertility, the couple moved to Massachusetts, attracted by clinics that offered advanced procedures. Finally, through in vitro fertilization, they welcomed twin daughters into the world.

Years later, their marriage fell apart and their visions for the future diverged. Left at the fork in the road was a vial with four frozen embryos.

Yesterday, Massachusetts' highest court heard arguments to decide whether the woman can have the embryos implanted despite objections by her former husband.

At stake are issues that cut to the core of law and family: Is a contract enforceable when circumstances change radically and the contract's subject is creating children? How should the interests of the mother or father be weighed? Are embryos property, people, or something in between?

As one of only a few such cases to reach a state supreme court, the Massachusetts decision will influence the path that other states take toward resolving these disputes. Activists and experts are paying close attention to the case, expecting to get a clear indication of where the debate is headed.

"The whole field is a little bit like the Wild West, with kind of a free-wheeling market, very little ethical oversight, very little regulatory oversight," says Arthur Caplan, director of the University of Pennsylvania Center for Bioethics, based in Philadelphia.

So far, lawmakers in the United States and the fertility industry itself have allowed couples and clinics to enter into contracts, then let courts work out disputes that arise.

In the Massachusetts case

The specific issue at the heart of the Massachusetts case is whether the man understood clearly enough what he was signing.

The Massachusetts couple signed a number of forms, including provisions written in by the wife that she could use frozen embryos in the event of their separation. But the family court judge who blocked the woman from doing so said that circumstances had changed since the forms were signed - most notably because of the birth of their twins and their divorce proceedings. He said it would be unfair to impose on the man the emotional and financial responsibility of another child.

The judge added that the woman, identified in court papers only as B.Z., had other options for raising additional children, such as adoption.

But after undergoing years of intrusive procedures to have her eggs harvested, and after the couple agreed on paper what would happen if circumstances changed, Mrs. Z has a right to now attempt another pregnancy, argues her lawyer, Gretchen Van Ness.

"She feels very strongly that she worked very hard to have children, to have as many children as possible, and that these are her children waiting to be born," says Ms. Van Ness. Next year, Mrs. Z will reach the clinic's implantation cutoff age of 45.

"People will argue that there are public-policy reasons that these contracts are different from other kinds of contracts, but I argue that these are the kinds of issues that we want people to decide in the privacy of their relationships with each other, with the help of their doctors and families," Van Ness says.

Many observers say contracts are the best way to protect that privacy. "People can and should decide what should happen in advance," says Ami Jaeger, a member of an American Bar Association (ABA) committee that is working on model legislation for states. But she adds that lawmakers can provide additional protection by requiring that, for instance, mental-health professionals and lawyers be involved.

"Many times, they come into the clinic and they are so focused on having a baby," she says. "Doctors are pretty good at figuring out which embryos are the healthiest, but they are not in any kind of position to determine who is the legal parent of that embryo."

Another reason for states to regulate the industry is that researchers have been turning to clinics for embryos to use in their studies. "The clinic has a whole other competing interest with what to do with embryos," says Ms. Jaeger.

A handful of states have relevant statutes for cases such as these. Florida, for instance, requires written agreements for disposition of embryos in the event of death or divorce. But New York is the only one in which a task force has studied assisted-reproduction issues and made a wide-ranging set of recommendations.

The report was issued in 1998, the same year the state's high court ruled on a dispute between Maureen and Steven Kass. In that case, the court upheld the couple's contract, which said their frozen embryos would be donated for research if the couple divorced. She had later changed her mind and wanted to have them implanted.

Unlike decisions about abortion, in which the law has given women greater authority than men, embryo disputes of this kind are generally seen as a level playing field in terms of gender.

Gender roles

In a 1992 Tennessee case, Davis v. Davis, for example, the high court found that there was no valid contract. The woman wanted to donate frozen embryos to a childless couple, but the court ruled in favor of the man, saying he shouldn't be forced to become a biological father.

"The right to have a child and the right to choose not to have a child, both of those are aspects of the right to privacy and the liberty protected by the 14th Amendment," says Sarah Wunsch of the Massachusetts American Civil Liberties Union. "Because we're talking about embryos that haven't been implanted, [the woman and the man] are equal."

The ACLU's position has also been to try to "make sure that no court rules that pre-embryos are people with legal rights," Ms. Wunsch says.

But giving embryos the legal rights of people is exactly what members of Massachusetts Citizens for Life want. Although the group objects in general to in vitro fertilization, executive director Maryclare Flynn says they support Mrs. Z's appeal because "it's necessary to defend these four newly formed human beings."

Mr. Caplan also says this issue is much broader than a simple contract dispute. He says policymakers should play a role because assisted-reproduction is becoming such a big business. In the US, about 100,000 children have been born through a variety of methods, according to the American Society for Reproductive Medicine. Those births represent a roughly 25 percent success rate. According to some estimates, tens of thousands of stored embryos are subject to dispute.

"My argument would be, it doesn't matter what this person signed. If he doesn't want to parent anymore with this woman, this guy should be able to withdraw his consent immediately," Caplan says.

Can contracts work?

But others ask: What good are agreements if people can simply back out of them at will - especially in the context of divorce, when ulterior motives sometimes come into play?

Lynne Gold-Bikin, former chairwoman of the ABA's family-law section, says enforcement of the contracts, not legislation, is what's needed. "I promise you, if the superior court [in Massachusetts] upholds this contract, before people sign it in the future they'll be thinking carefully."

(c) Copyright 1999. The Christian Science Publishing Society