Miscarriages are always tragic, but some people couldn't help privately expressing relief when Tracy Veloff's pregnancy failed in December.
Veloff was a paid surrogate mother, and the fetus she was carrying had been made from the egg of a woman who had been dead for a year. It was the world's first case of posthumous maternity, a precedent many found troubling.
Lawyers were already haggling over who would be the child's parents. The biological mother, Julie Garber, was buried in December 1996 after freezing a few embryos produced from an anonymous sperm donor. Veloff had no intention of raising the child she was paid to carry.
Even Garber's parents, who had arranged the pregnancy, did not plan to raise the child themselves. They had inherited the embryos along with their daughter's furniture and other possessions, and, they said, it was their prerogative to grow them into grandchildren.
And, earlier this month, a state appeals court declared Santa Ana resident Luanne Buzzanca the legal mother of a 2-year-old girl who was conceived after Buzzanca and her then-husband, John, hired a surrogate to bear them a child using anonymous donations of egg and sperm.
The couple began divorce proceedings shortly before Jaycee Louise was born, and John Buzzanca petitioned the court to declare neither he nor his estranged wife was a legal parent, which would have left the girl parentless.
The Garber and Buzzanca cases are just two examples of an increasing number of ethical predicaments to emerge in recent years as a dizzying array of reproductive technologies has redefined the meaning of "parent" and "child" in ways wholly unfamiliar to American society and its legal system. Of the many areas of science that today are giving rise to bioethical quandaries, this one more than any other strikes at the heart of society's most cherished institution: the family.
Today's ethical crisis in reproductive medicine is the product of converging social, economic and scientific factors. Many women in the work force have delayed childbearing to the point when technological intervention now offers their only hope of becoming biological mothers; a lack of financial support from the federal government has pushed the $2-billion-a-year fertility industry onto an aggressively entrepreneurial track; and recent advances in egg freezing, embryo manipulation and other techniques have shattered many of the biological barriers to parenthood.
The result of this convergence has been a large, uncontrolled experiment in novel methods of family-making. It has been, by some measures, a highly successful experiment--one that has brought the joys of parenthood to thousands who otherwise would have remained childless. In 1995 alone, 11,315 women gave birth to children conceived by some form of assisted reproductive technology, according to the American Society for Reproductive Medicine.
At the same time it has generated ethical, legal and social conundrums. New treatments are being rushed into use before they are fully proven to be safe or effective, potentially putting some women and children at heightened risk of physical and psychological harm. In some cases, women are not fully aware that they, their eggs or the resulting embryos are the subject of research, experts said.
As a result, a growing number of people are calling for new laws to regulate assisted reproductive medicine. The field today is largely free of federal or state oversight. In the continued absence of such regulation, critics say, more and more people--particularly children--could be harmed.
"This field is screaming for oversight, regulation and control," said Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania. "If you are going to make babies in new and novel ways, you have to be sure it's in the interest of the baby."
The ethical and legal confusion surrounding high-tech family building extends beyond the questions of embryo inheritance and parentage raised by the Garber and Buzzanca cases. Courts are also finding themselves embroiled in debates over fertility clinic record-keeping practices, which in some cases appear to have led to the loss of women's frozen embryos. And they are having to settle questions of who should bear responsibility when a woman's egg is inadvertently inseminated by diseased sperm.
In one far-reaching case, a Pennsylvania jury may soon decide the difficult question of whether fertility clinics are more than "baby marts" and have a responsibility to ensure that their clients are prepared for the challenges of child-rearing. The case came about after a 26-year-old bachelor paid a clinic $30,000 to have a child made for him, then killed the child within six weeks of bringing him home.
"Every so often you have to step back and say, 'What are we trying to do here?' " said Barbara Katz Rothman, a sociology professor at Baruch College in New York. "Most of us don't have a really clear sense" of how the fertility industry should be run, Rothman said. "But I'm fairly certain that we shouldn't just be turning this over to the forces of the market."
Given the lack of uniform standards and the confused state of the law, an American Bar Assn. panel is preparing a landmark legal analysis that it hopes will be translated into uniform legislation to be adopted by individual states. The proposal is scheduled to be unveiled this summer.
Meanwhile, some experts are saying that at a minimum, fertility doctors should provide written warnings to their clients about the legal and ethical entanglements they may face.
"The standard of care for assisted reproductive medicine should be that you advise people not only of the medical risks but also the legal and social risks," said R. Alta Charo, a professor of law and bioethics at the University of Wisconsin, Madison.
Matters become confusing when the most obvious parent is long dead. When Garber died, her parents hired a surrogate mother to bring their daughter's ungestated offspring to term--an act they said fulfilled one of Julie's last wishes. The plan was to give any resulting offspring to their other daughter.
After three tries, the adventure ended in December when the last of Julie Garber's embryos was rejected by the surrogate mother's body a few weeks into pregnancy.
The American Society for Reproductive Medicine recommends "caution" when posthumous reproduction is being considered, although the organization allows that the practice is not inherently wrong when the deceased has left express permission, as Julie Garber did.
Yet courts have been hostile to the idea that frozen embryos can be inherited like furniture or other property. "A man's sperm or a woman's ova or a couple's embryos are not the same as a quarter of land, a cache of cash, or a favorite limousine," a California court of appeals declared in November 1996.
Moreover, little is known about the psychological downside for a child who eventually learns that one or both parents were dead long before that child's own gestation began. Some experts have begun to complain that in the modern conception industry, the rights and privileges of potential parents--even dead ones--are gaining precedence over the welfare of the children being produced.
Similar problems arise with dead sperm donors. Not long ago, said Lori Andrews, a professor of law and bioethics at Chicago-Kent College of law, a man from Milwaukee deposited some of his sperm in a sperm bank before having cancer therapy, with the intention of using them to have children later. The man died, and when the hospital called his mother to see what they should do with the sperm, she decided to take out advertisements offering his semen to women in need.
"She was quoted as saying she wanted to have as many grandchildren as possible," Andrews said. "Well, I'm a real big believer in consent before reproduction. I can't believe this man wanted his sperm spread all over Milwaukee. He donated thinking he would be a father to his children."
Generic laws regarding good business practices suggest fertility clinics, at the very least, have a responsibility to keep track of and protect the eggs, sperm and embryos left in their care. Yet quality control standards for fertility clinic laboratories differ widely from lab to lab and from state to state. And the history of in vitro fertilization in this country is littered with tales of lost, damaged or misappropriated sperm, eggs and embryos.
In the most famous case, doctors at an Irvine clinic have been accused of taking the eggs and embryos of scores of women in the early '90s and implanting them in others, some of whom gave birth.
That clinic is now closed and Ricardo Asch, the physician who headed it, has left the country. But a stream of less well-publicized cases has followed--each highlighting a different shortcoming in record-keeping or some other aspect of quality control.
Record-keeping standards are at issue in the case of Brittany Johnson, an 8-year-old Los Angeles girl who in 1995 learned she had polycystic kidney disease. Records suggest she inherited the genetic condition from a man known only as "Donor 276," whose sperm allowed Brittany's mother to become pregnant with her.
According to court documents, a Los Angeles sperm bank provided those sperm to them--and to an unknown number of other infertile couples--despite a signed statement from the donor suggesting he might have a family history of kidney disease. The sperm bank has denied negligence or blame for Brittany's kidney disease--a condition that could lead to kidney failure.
No single regulatory body can address the array of complications resulting from the revolution in reproduction--least of all the federal government, which abdicated much of its responsibility over the field years ago when it slowed and then stopped all federal funding for embryo research.
In place of federal oversight, a hodgepodge of state regulations has emerged. For example, about half of all states, including California, now insist that donated sperm be tested for the virus that causes AIDS. A similar number of states require a husband's permission before a married woman can accept donor sperm. Almost every state has laws to clarify who the legal father is when donor sperm are used. Five states have laws regulating egg donation.
To address that confusion, a committee of the American Bar Assn. has been working for more than a year to create what amounts to model legislation for states to consider. It's a difficult task.
"The field is moving so quickly, you can't easily anticipate the next twist," said Ami Jaeger, co-chairwoman of the ABA committee and principal at the BioLaw Group in Santa Fe, N.M., which provides legal and consulting services in genetics and assisted reproduction.
But there are several basic principles that the panel hopes the ABA will back at its annual meeting this summer: that a doctor is responsible for informing fertility patients of the potential for legal and ethical complications. That posthumous reproduction may in some circumstances be inappropriate. That only a limited number of unrelated "third party" individuals should be allowed to have a hand in creating a baby.