As ethicist Thomas Shannon sees it, "The application of in vitro fertilization has moved almost overnight from the lab to the clinic." Shannon, who teaches at Worcester Polytechnic Institute in Massachusetts, might have added, and into the law courts as well. Like many other modern technological wonders, the artificial union of sperm and ovum to form a zygote, which is then frozen for eventual implantation in a woman's womb, has gone from the near miraculous to the almost mundane -- and ultimately to the moral dilemma. One current legal case addresses two of the key ethical questions raised by in vitro technology: Who should exercise primary rights over the frozen embryo? And what rights, if any, does the embryo have?
In 1986 Risa and Steven York entered an in vitro fertilization program operated by the Howard and Georgeanna Jones Institute for Reproductive Medicine in Norfolk, Va. But three implants failed. The Yorks, who last year moved from New Jersey to California, asked the institute to ship their frozen embryo to a comparable facility at Los Angeles' Good Samaritan Hospital, where Dr. Richard Marrs was prepared to supervise its implantation. Much to the couple's surprise, Jones refused, arguing that the consent agreement signed by the Yorks gave them no rights to the embryo outside his institute's jurisdiction. In effect, Jones contended, the Yorks have only four choices: they could have their embryo implanted at the institute, donate it to another couple, offer it for experimentation or destroy it.
Last month a federal judge denied the Yorks' request for a preliminary injunction against the institute and ordered that the case be tried by a jury in the fall. The decision was a blow to the Yorks, for whom time is critical. Risa is 39, and the spontaneous abortion rate for in vitro implants increases dramatically in women beyond the age of 40. Also, the longest recorded freezing of an embryo that was later successfully implanted is 28 months; the Yorks' embryo has been in a cryogenic state for 24 months.
Cases like the Yorks' are bound to multiply. The nation's population of frozen embryos exceeds 4,000, and state laws governing their use are often in conflict with one another or at odds with reality. In Louisiana, for example, a 1986 statute defines a frozen embryo as a juridical person -- meaning that it has legal status and can be represented by an attorney in court proceedings. But under another Louisiana law, a woman can legally abort an implanted embryo through the first trimester. In an attempt to resolve some uncertainties, an ethics committee of the Virginia-based American Association of Tissue Banks is drafting rules for the handling and disposition of frozen embryos.