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These are not idle flights of fancy. There have already been attempts by lesbians and transsexuals to acquire babies. And the varied fertility controversies that reach the courts are sometimes of a rending intensity. In New York City, for instance, a Florida couple named John and Doris Del Zio in 1973 became the first couple in the U.S. to attempt IVF. An infertility specialist removed an egg from Mrs. Del Zio, put it in a container and handed it to her husband, who raced across town in a taxi to deliver it to the Columbia-Presbyterian Medical Center. There, another doctor fertilized it with some of Del Zio's sperm and stored it in an incubator. The next day the hospital doctor was furiously scolded by his superior, Dr. Raymond Vande Wiele, who not only accused him of dangerous and unethical practices but also stopped the experiment entirely by unsealing the incubated container, thus killing the embryo. The couple sued the hospital and Vande Wiele and won $50,000 in damages. Yet when the hospital opened its own IVF program in 1983, Vande Wiele became its codirector.
In Michigan, Surrogate Mother Judy Stiver agreed to be artificially inseminated by Alexander Malahoff for $10,000. When the baby was born last year, it turned out to be microcephalic and mentally retarded. Malahoff insisted on blood tests that might show he was not the father. As a macabre touch, these test results were announced on Phil Donahue's TV show. They disclosed that Malahoff was indeed not the father; Stiver had had sexual intercourse with her husband at about the same time as the insemination. Now the baby is in the custody of the Stivers, and both sides are suing each other.
In Illinois, the first state to deal specifically with IVF, the legislature decided in 1979 to make any doctor who undertakes such a procedure the legal custodian of the embryo—and liable for possible prosecution under an 1877 law against child abuse. The result was that many Illinois doctors, though not specifically forbidden to perform IVF, refused to do so. The state attorney general said that most simple IVF procedures would not violate the law, so a number of doctors went ahead. Still, one couple, identified as John and Mary Smith, who have been married for nine years and have two adopted children, are challenging the Illinois attempt at regulation as unconstitutional. Their class action, due for trial in federal court in November, argues that such restrictions violate the fundamental right of "privacy," which the Supreme Court has proclaimed several times in its rulings on abortion, contraception and various aspects of procreation.
If the array of U.S. laws and regulations seems confusing, the legal wilderness abroad is totally bewildering. A group of West European justice ministers meeting in Strasbourg tried to work out some international policies on reproduction technology, but they gave up in despair. In Germany, where there are no laws either permitting or forbidding surrogate motherhood, a man in Bad Oeynhausen was fined $1,750 for advertising for a woman willing to gestate an embryo and then give the child up for adoption to a childless couple. Before he could find such a woman, he was fined because the law forbids any ads in connection with adoptions.