‘Preventive Law’ to Stem a Bioethic Flood

The dispute over custody of frozen embryos now being played out in a Tennessee courtroom is more likely to produce a good soap opera than good law.

After tubal pregnancies and years of futile attempts to have children, Mary Sue and Junior Lewis Davis sought the help of a high-tech medicine, which produced not a child but seven fertilized human eggs in a sub-zero repository.

What should happen to those tiny pre-embryos, groups of four to eight human cells that possess the potential to become a human being but are now something less? Should the judge rule in favor of Mary Sue Davis, who wants to have them implanted in her uterus? Or for her husband, who does not want to become a father to children from their soon-to-be ended marriage?

The genius of judge-made law has been that it typically moves by small increments, grounded firmly in an actual dispute. If the judge makes sweeping generalizations about the rights of men not to be faced with offspring to whose conception they actively object, what would that mean if a man is “tricked” by a woman into inseminating her (perhaps under the false impression that she was using contraceptives?)

Conversely, were the judge to rest a decision in Mary Sue Davis’ favor on the broad ground that the embryos have a right to be born, what would happen if she did not want to have all the embryos implanted because she found the process fruitless (and too expensive) or because it succeeded and she bore a child? Would she then be legally obligated to undergo further implantations? To carry any resulting pregnancy to term? To allow the embryos to be implanted in other women? And if such women were single, would Junior Davis still be regarded as the legal father of the resulting children? And what would Mary Sue Davis’ rights and obligations be regarding the issue of such “surrogate” pregnancies?

The Tennessee courts may be drawn to address issues like these because the media have already labeled the Davis dispute a landmark case, and a decision limited to the facts of this case is unlikely to have major effect in later cases. Indeed, had the fertility clinic insisted that all couples using in vitro fertilization specify in advance how embryos were to be disposed of in case of disagreements, the Davis case need never have arisen.

Yet even if the Davis’ dispute does not make major law in the courts, it is likely to provoke some lawmaking on the part of legislators caught up both by the drama of the case and by the sense that the law has, once again, “fallen behind” biomedical developments.

In a way, of course, they would be right. Most states do not have legislation that addresses the disposition of frozen embryos. But the subject has been looked at by many governmental, medical, religious and other groups in the past decade and--as the American Fertility Society reported in 1986--”there is a wide consensus that the pre-embryo has a special moral status but not a status equivalent to that of a person.”

If there is a need to translate that general view into specific guidance about storage, implantation, experimentation and disposal of pre-embryos, are the state legislatures the best forums to examine the issues and develop laws and regulations?

Eventually, in a democratic society, all public policy is subject to review--and approval or rejection--by our elected representatives. But at a time when more pressing crises demand lawmakers’ attention and when any issue that relates to reproduction (and hence to abortion) is more likely to provoke more rhetoric than reason, we need another way of developing legislative proposals to deal with the emerging ethical and legal problems.

The federal government has had a number of groups studying bioethics over the past decade--made up not only of physicians, scientists, lawyers and theologians, but also of nonexpert members of the general public. Yet none are currently at work on the issues of the new reproductive technology. And in any event, most bioethics issues touch on matters of state rather than federal law. Several states--most notably New York, with its 4-year old Governor’s Task Force on Life and the Law, and New Jersey, which impaneled a bioethics commission three years ago--are making the effort to get good advice.

In California, the Legislature has established a Joint Committee on Surrogate Parenting. But it is authorized to examine only one small part of the new reproductive technologies, thus running the risk of disjointed or contradictory legislation. A bill to establish an advisory committee on bioethics, sponsored by state Sen. Diane Watson (D-Los Angeles), died in committee last year. Her current proposal is awaiting action in the Assembly.

It seems a forgone conclusion that the Tennessee court’s ruling--whether it leaves the embryos frozen or thaws them out--will loose a flood of legislative proposals. If we here in California are going to stay afloat, we need to get our boats ready now. We should practice a little “preventive law” of our own by establishing an ongoing body to advise the Legislature on these thorny bioethical issues.