FREE ESSAY ON FROZEN EMBRYOS, WHO HAS LEGAL RIGHTS?

FROZEN EMBRYOS, WHO HAS LEGAL RIGHTS?

Issue Analysis #1
Frozen Embryos, Who has legal rights?
Nursing 498F
February 16, 2000
Invitro is defined as, "In glass, as in a test tube"(Taber's cyclopedic dictionary,1993),
hence with reference to invitro fertilization, the term "Test tube baby". The first 'test
tube baby' was Louise Brown of England (Jonsen, A. R., 1996). Dr. Patrick Steptoe and
Professor Robert Edwards combined an ovum from Mrs. Brown, and sperm from Mr. Brown
cultured it in a petri dish, and reimplanted the now embryo into Mrs. Brown's uterus
(Jonsen, A. R.,1996). The result was the same as a child born in the usual way, only the
means to the end was different. The media had a field day with this, and since then,
reproduction as we know it has changed.
We now use the term "assisted reproduction" to describe a host of methods used to assist
infertile couples to have children. A menagerie of large terms, abbreviations, and
acronyms are used under the umbrella of this term, such as GIFT, IVF, FSH, AID, etc. The
bottom line is that technology has allowed man to take yet another matter into his own
hands, that may be considered "playing God".
As with any new procedure or product, there are always "bugs to work out". Sometimes we
can anticipate what these will be, but many times we "cross that bridge when we come to
it". Such seems to be the case with assisted reproduction. Considering the complicated
custody battles already occurring with regard to our "naturally made children", we have
seen, and can anticipate more tangled legal webs ahead.
Not much has been done to anticipate the complexities involved with assisted
reproduction. In 1975, a federal law was enacted that created an Ethics Advisory Board 
(EAB)(Caplan, A. L., 1990). In 1979, this organization issued a report merely stating
that invitro fertilization was worthy of monetary funds (Caplan, A. L., 1990). The EAB
disbanded in 1979 (Caplan, A. L., 1990). In 1994, The American Society for Reproductive
Medicine designed a set of ethical considerations, but compliance is voluntary (Klotzko,
A. J., 1998). Since no real regulatory agency exists, IVF is done as providers see fit. 
The formation of The American Society for Reproductive medicine reflects the fact that
there are clearly many ethical issues with regard to IVF. Three issues are the
following:
1. Previously, an embryo has been a part of a woman's body. Roe vs. Wade based it's
decision on abortion being part of a woman's privacy. With regard to frozen embryos which
are not a part of the women's body, does she have the right to choose their fate, and
does the father have equal say?
2. Do the potential parents of these embryos have the right to change their minds about
becoming parents once the embryos have been frozen?
3. In complicated matters with multiple parents, does multiple parental roles with
visitation rights adversely affect a child's social development?
When one is discussing abortion, the argument heard most often by the
advocates of pro-choice is that this is a matter of a woman controlling what goes
on with her body. Furthermore, advocates claim, that as such, the elimination
of the fetus falls under this right of privacy. 
Pro-life advocates feel that these embryos are individual human beings entitled to the
right to be born. Embryos are considered life in the earliest of stages.
However, what we have here are frozen embryos, suspended if you will in a state of
non-life. They clearly do not reside in the woman's body as of yet, and if kept in the
current state, will never give breath. It seems that the prochoicers would have to extend
their definition of these being a part of the woman's body, to giving their potential to
be such, meaning as well. While they are not a part of the woman's body yet, this is the
intended place for them to grow, and obviously they cannot grow inside of the father, at
least yet.
The prolife, and paternal argument would be that these embryos are clearly not a part of
the woman's body. They could be implanted in any woman, not necessarily the mother.
Therefore, the mother does not have the right to abort the embryos. Furthermore, the male
may have the right to claim custody for implantation in another suitable candidate other
than the mother if she is unwilling. 
What we have in the case of Mary Davis and Junior Davis is a woman fighting to have her
own embryos implanted in her own uterus. Based on some of the facts above however, does
the father now have more right over the embryos, since this process has not yet taken
place? Obviously the situation here is very complex. Unfortunately these types of
situations could be prevented through forethought. Couples undergoing these types of
procedures clearly need to anticipate all scenarios. Practitioners could easily fit 
issues into the counseling phase, and even request to have documentation of such before
these procedures are done. A contract could cover many different possibilities. 
Anticipatory decision-making certainly would alleviate the daunting task of deciding
these issues after the fact.
However, the court system often has the responsibility of deciding these very personal
matters. What is clear here is that we have seven potential people. We also have a
willing, assumingly capable mother. What we do not have is a willing father. If a person
who had been raised solely by his/her mother were asked if he/she would like to never
have been born, I doubt too many would say yes. It is for this reason, that I feel the
embryos certainly are entitled at their chance at life.
I further qualify this argument to state, that if the situation were reversed, with the
father desiring to implant the embryos into another female (possibly his new partner), I
would advise that the embryos should be given to the father. Furthermore, this father
could not take back the children if the previous attempts had been successful. Therefore,
why should he be entitled to do so now?
The statement that these "children in vitro" whose best interest required "that they be
available for implantation" is key. These are truly "children in vitro". They are not
part of the mother's body. Therefore, their options at life do not hinge on one certain
person and the privacy issues relating to her body.
Now I wish to address some details here. The father does not wish to be a parent here.
Does this clear him of responsibility to these children? Clearly, the father's morality
should preclude that he would want to be involved in the life of his children. Obviously,
this is not always the case. Therefore, is he obliged to have visitation, or pay support?
My argument for this is no. The father has shown his desire not to become a parent. As
such, he relinquishes his tie to these children. He should not be required to pay
support, nor have visitation. The best interest of these children does not lie in having
a "shotgun" father. 
What I would say to these parents would depend on my role. As a health care professional,
it would be difficult to step in and advise at all. I would rather try to facilitate
examination of their own beliefs. Hopefully, I would have had the pleasure to meet with
this couple before this scenario, in order to assist with some preemptive decision
making. If this couple however, was truly desiring an honest an open opinion, and asking
for my true feelings in advising them, what would I say? My speech, would go something
like this:
"What we have here will influence moral decisions of many in the future. It must be
considered that what you do here, will be a looked upon by other couples facing these
very difficult issues in the future. Coming to an agreement based on sound moral
reasoning will show an example for the future. If couples begin to work these issues out
without legal litigation, these very personal matters remain personal. These are issues
of family. How you wish to handle your family is considered a right by many. If these 
situations can be agreed upon, lawmakers will be able to avoid interference in family
matters. The creation of laws and regulations will inevitably fall short of the vast
amount of variability needed to fairly pervade over every situation. With that said, I
would implore you to work out your differences. 
"If you are still unable to do this, allow me to be candid. It is my opinion that these
are seven potential children. They were created by the both of you at a time in your life
when this was something you both wanted. They were created through thought and planning.
Many things in life are done by accident, but these embryos are not one of them. If you
still do not wish to be a parent, Mr. Davis, then perhaps you would acquiesce if some
stipulations were made. Mrs. Davis has asked to be a responsible party for the embryos.
Perhaps we could create a release of responsibility for Mr. Davis, relieving him of all
duty in matters of visitation and support. I do not necessarily condone this release from
fatherhood, but it may provide an avenue to come to an agreement. Unfortunately, the idea
of whether or not these embryos are considered children weighs heavily on the matter.
This issue boils down to your feelings on abortion. Heavily weigh your options and
remember the world will be watching."
The option exists in the current situation to give life to the embryos with neither
actual parent needing to really be involved in the matter i.e. donation to the infertile
couple. Reality here however, lies in the possibility that the child may hold the parent
responsible in one way, shape or form in the future. Yet another possibility, a
statistically sound one at that, is that the embryos may not even come to term 
successfully. There are many unknowns here, and all factors cannot be anticipated.
Society can now control many factors, but fate still pervades some aspects. 
Along with the technological advances in society, we have created options that never
would have been conceived before. Issues of reproduction and abortion are issues that
once were controlled by fate. Having a hand in such matters of such 
monstrous proportion requires us as people to hold ourselves to a standard that possibly
cannot be done by humans. For this reason, reproduction may have been better served by
the one who used to control it, before man took over. 
Bibliography
References
Caplan, A. L. (1990). The ethics of in vitro fertilization. In R. T. Hull Ethical 
issues in the new reproductive technologies (pp. 96-108). Belmont, CA:
Wadsworth.
Jonsen, A. R. (1996). "O brave new world": Rationality in reproduction. In 
D.C. Thomasma & T. Kushner (Eds.) Birth to death: Science and bioethics. 
(pp.50-57). Cambridge, England: Cambridge University Press.
Klotzko, A. J. (1998). Medical miracle or medical mischief? The saga of the 
McCaughey septuplets. Hastings Center Report.28(3), 5-8.
Shapiro, R. (1998). Who owns your frozen embryo? Promises and pitfalls of emerging
reproductive options. Human Rights25(2).
Taber's cyclopedic medical dictionary(1993.). Philadelphia, Davis Company, 
F. A.