Legal Issues Murky in Fertility Controversy : Law: Alleged transfer of women’s eggs at a UC Irvine clinic poses a possible criminal statute puzzle. Doctors could be prosecuted on grand theft charges, experts say.

Steal a $400 stereo, face 16 months to three years in prison.

Take a couple’s test-tube embryo--in a moral breach of trust so great it has been likened to “the Titanic on the bioethics ocean”--and the penalty could be just about the same, if it is even that severe.

It is clear that the three UC Irvine doctors at the vortex of the Center for Reproductive Health controversy--Ricardo H. Asch, Jose Balmaceda and Sergio Stone--could be in a heap of trouble on ethical and civil law grounds, if allegations against them prove true.

In a Superior Court lawsuit, they stand accused of breach of contract, spoiling or hiding evidence and exposing their University of California employers to damage suits for allegedly administering an unapproved drug, engaging in improper human research, and taking eggs from women and giving them to others without the donors’ consent.

The doctors hotly deny the allegations.

The potential criminal issues broached by the unfolding fertility scandal are murkier. The California Penal Code says nothing at all about the taking of human eggs or embryos.

Legal experts and the deputy district attorney heading a probe of the doctors’ potential criminal misconduct say that California’s theft statutes are the most likely path available to prosecutors. If the value of the taking is deemed more than $400, it is considered grand theft.

But some say that even a theft charge would probably be challenged vigorously by the doctors’ lawyers, who could appeal the issue up to the state’s highest court, or beyond, seeking standards and definitions.

Is an egg considered property? What is its dollar value? Would this even be a criminal matter? And even if the charge were to hold up in court, would three years in prison, cut in half for good behavior, be enough to punish a crime that affects a victim’s emotions so deeply?

“When you’re looking at an embryo, you’re not thinking of grand theft. You’re thinking of something much more significant,” said Deputy Dist. Atty. Charles Middleton, who is overseeing an investigation into possible criminal acts by the doctors.

Some, including Middleton, say the law simply has not caught up with the fast-moving field of reproductive technology, and that Sacramento lawmakers must add yet more provisions to what is already one of the nation’s thickest penal codes.

“We’re dealing with emotions so high, and the trauma is so great to potential victims, you have to try to carve out a separate statute by itself, and make it significant enough so they’re going to think twice before they do something like that,” he said.

“I think everybody is just really concerned about this case and the potential [for wrongdoing] in this field. The need for some kind of guidelines is coming to light.”

Laws carrying heavier penalties--something more in line with the likely trauma of a couple whose fertilized eggs are transferred to a stranger without their knowledge--just don’t fit.

Kidnaping statutes definitely do not apply, because California’s criminal statutes do not treat human eggs, or embryos, as humans. Penal Code provisions such as the law against homicide do not take effect until the second trimester of pregnancy, when the embryo has become a fetus.

And a 1984 statute governing the sale of human organs for purposes of transplantation would not work here either, because no one has alleged that the doctors put a price on the eggs or embryos.

Middleton said the lack of a more precise statute would leave prosecutors with but one strong option: theft.

“If there is a procedure that costs a significant amount of money, like $400 or more, and something is taken during that procedure with the idea that it never be replaced, that’s grand theft,” Middleton said.

Another criminal law expert, who may eventually become involved with the case and declined to be identified, agreed.

“It has seemed to me that there would not be a problem with prosecuting it on a traditional theft theory,” he said. “Theft is essentially defined as the taking of personal property with the intent to permanently deprive the owner of it.

“Certainly fertile eggs, eggs, are a thing of value,” he said. “I’m not aware of any law that would characterize them as anything other than personal property.”

But even he conceded that when it comes to the uncharted field of reproductive technology, the law could be viewed as fuzzy. Prosecutors will probably have to show that the eggs or embryos themselves--and not the fertility procedure that might cost thousands of dollars--had a value greater than $400, he said.

One lawyer familiar with the case noted that the state statutes and case law are silent on the issue of egg donation, which could stymie prosecution. There is no precedent classifying eggs as “property” eligible for the state theft statutes, he said.

“They would have to show [that someone] was intentionally taking eggs from one and giving to another, and prove [that person] knew that the person from whom he took it didn’t want him to take it--no implied consent or anything,” he said.

The way to ease this confusion, Middleton said, is for the Legislature to craft a specific statute clearly stating that taking eggs or embryos is theft, and providing a punishment more in line with society’s moral outrage.

Such a move by the Legislature would be far from unusual, said Middleton, pointing out that there are even specific statutes pertaining to the theft of animal carcasses, or stealing another’s dog.

But others say: Not so fast.

“Whenever we try to make laws that are specific to really weird cases, then we usually end up with a bad law,” said one legislative aide familiar with the legislative process in Sacramento.

“Legislators love this stuff. We may see 15 bills in the next week outlawing the harvesting of eggs. Then everyone can send out a press release saying, ‘I stopped this problem in its tracks,’ ” he said. “That’s padding of the Penal Code with laws that don’t serve a purpose, when another law already exists.”

In the fast-moving field of science, it can be dangerous to rush to legislation, added criminal defense attorney William Kopeny.

Kopeny said the allegations point to “difficult policy issues that probably should have some legislation to make it clear where the criminal sanctions should be.” But he cautioned that what is unthinkable to society at one point in history can become accepted in time.

“I am not in favor of expanding the compass of criminal law into the area of morals, particularly where morals and science come together,” Kopeny said.

“I think that it’s a real dangerous thing to run to the Legislature to enforce what may be a passing moral outrage. We probably need a period in our society with experimentation with all of this stuff before we run to make things a crime.”