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Legal Eagle: Law needs to catch up with pace of high-tech births
Thursday, June 21, 2001 By Patricia G. Miller
The courts are being bombarded by lawsuits arising from high-tech reproduction: the ability to unite sperm and egg in nontraditional ways. The issues these lawsuits raise show how slow the law has been to catch up with the technological changes. Consider these:
A couple enters into an agreement with a fertility clinic to unite their sperm and egg in a test tube and implant the fertilized egg into her uterus, hoping to produce a baby. But instead of having one baby, the woman has two or even three. Is there a lawsuit here? Perhaps, because they got more than they contracted for. But what are the damages, especially given that the parents will doubtless love the babies?
Or consider Donna and Richard, a New York couple. They contracted with a fertility clinic to implant two of their fertilized eggs into her uterus. Nine months later, she had twins. The problem: one twin was black and one twin was white. The clinic had mixed up its fertilized eggs, implanting one of theirs and one belonging to a black couple.
Although Donna and Richard had an attachment to both babies, they agreed to return the child to the biological parents. What they wanted was the right to visit. In the old days, we talked about "birth parents" and "adoptive parents." Now the dialog is much more high-tech, distinguishing between "genetic parents" and "gestational parents."
So how did the law deal with this one? Calling the circumstances "unique," the court denied Donna visitation, finding that hers was only "nominal parenthood." Ask any woman who has endured morning sickness, swollen ankles and childbirth if she thinks her contribution to parenthood is only "nominal."
Some high-tech reproduction cases involve what the law calls property issues: Who owns what? Are frozen embryos in a lab's test tube "people" or are they "property"? Because philosophers are unable to answer this question, it is unlikely that courts can. If embryos are "property," they can be awarded to either person in a divorce, like any other asset. If they are "people," then custody laws become relevant, and an important factor is who will be the better parent.
But these laws don't work, either.
Suppose that in a bitter divorce, Sue and Bob, who already have two children by the test-tube method, want the right to their remaining 10 embryos, which have been frozen for eight years. Bob wants to let them thaw so that they will no longer be usable by anyone. Sue wants to keep them frozen in case she decides to have another child in the future.
If the embryos are property, Bob and Sue have equal standing in court. If they are people, only Sue can win because Bob wants to destroy them.
However, if Sue wins, new problems arise. If she uses an embryo in the future, can Bob be forced to pay child support? The resulting child would be genetically his, just like their two other children. No one knows the answer because no law exists to cope with problems like these.
Some fertility clinics require their clients to decide in advance what happens to their frozen embryos in the event of a divorce. That might work, but there is no guarantee that a divorce court would be bound by that private agreement. What happens when the clients move away and don't pay the fertility clinic's annual storage fees? Can the clinic discard the embryos or give them to someone else? Again, no one knows for sure.
The courts aren't equipped to handle 21st-century questions using 19th-century laws. It is time for legislatures to pass new laws for this new era. So far, they have not been eager to step into this emotionally charged arena.
Patricia G. Miller is the permanent equitable distribution master for the Family Division of the Court of Common Pleas of Allegheny County. Her views do not necessarily represent those of the division or its judges.
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