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Parenthood and frozen embryos: more than property and privacy.

"It is time," Lori Andrews once announced in these pages, "to start acknowledging that people's body parts are their personal property."[1] Her suggestion was prompted by the case John Moore brought against the University of California at Los Angeles and others for using his blood to develop a patented (and commercially valuable) cell line without informing him of what was going on. The California Supreme Court eventually rejected Andrews's suggestion, holding that Moore might have a case of fiduciary breach but not of property conversion.[2]

Another test for the body-as-property theory came on 1 June 1992, when the Supreme Court of Tennessee handed down its decision in Davis v. Davis. This case began as a dispute between a divorcing couple who--during the course of six failed attempts at reproducing through in vitro fertilization (IVF)--had left seven "pre-embryos" frozen in a liquid nitrogen tank at a fertility clinic. Mary Sue Davis wanted to have the pre-embryos implanted in her uterus in a further attempt to become pregnant, while Junior Davis wanted them left frozen.

In a divorce proceeding, joint property is typically divided evenly between the parties: from a set of eight Chippendale chairs each would get four, unless one wanted the whole set and the other accepted some other property of equal value. In awarding custody of children, however, a court exercises its parens patriae authority to find an arrangement that would serve the children's "best interests."

Extending Andrew's analysis, the pre-embryos in the Davis case were not "my body" for either Mr. or Mrs. Davis, but rather "our body"--seven pieces of joint property. The trial court declined, however, to treat the pre-embryos like Chippendale chairs. Instead it declared them to be "children in vitro" and concluded that their best interests would be served by awarding their custody to Ms. Davis, since she offered the greatest hope the embryos would be carried to term.

In 1990 the Tennessee Court of Appeal reversed, giving the parties "joint control" and an equal voice over the embryos' disposition.[3] The court based its holding on Mr. Davis's constitutional right of privacy, which protected his choice not to beget a child. The state has no compelling interest, the appellate court found, that would allow it to order implantation against the will of one of the parties.

Although largely affirming the appellate decision, the Tennessee Supreme Court focused on what is really at issue: choice about relationships. The need to think in such terms--rather than in terms of property or privacy, to cite two competing paradigms--is underscored by another recent and perhaps even more bizarre case, the fraud and perjury trial of Dr. Cecil Jacobson in the U.S. District Court in Alexandria, Virginia.

The Overeager Inseminator

In March, Dr. Jacobson was sentenced to five years in prison for using his own semen in artificial insemination (AID) of patients who thought the semen had come from anonymous donors or, in at least one case, from the woman's husband. The evidence presented at trial showed that Dr. Jacobson had fathered fifteen children, but the prosecutors speculated that the true total exceeded seventy.

Plainly, these women and their husbands wanted children through AID and presumably cherish the children that Dr. Jacobson helped them to bear. Yet the fact that Dr. Jacobson made himself the father of these children angered the couples and led to his prosecution. Their anger and his conviction were justified because his actions radically altered the relationship his patients had with him without their knowledge or consent.

Dr. Jacobson's wrong is not well captured within the rubric of "privacy" (if anything remains of that concept after the U.S. Supreme Court's recent Casey decision)[4] because Roe v. Wade had defined the unit for privacy analysis as the-physician-and-his-patient. Nor are the couples' interests well conveyed through "property," as diverse as the rights bundled under that heading can be in varying circumstances, because Dr. Jacobson didn't deprive them of anything--like a specific child--to which they had a reasonable expectation, much less a legally protected claim.

Instead, as in Davis v. Davis, the interests at issue in the Jacobson case are best encompassed within a right to choose about becoming a parent, a right to define one's relationships with another person (or, in the era of gamete transfer, other people) and with the offspring that might arise from that relationship. Becoming a parent should involve the freedom to choose both whether and with whom.

Davis v. Davis

The Tennessee Supreme Court approached the case by first noting that Mary Sue, having remarried, no longer wished to have the embryos implanted in herself but wished to donate them to another couple. The court then examined the status of the embryos, considering whether they were properly thought of as property or as persons. The court concluded that the embryos were not persons under the law, particularly abortion laws that allow for the destruction of fetuses, which are much more developed even than embryos. The court also rejected a property approach, however. It adopted the ethical standards of the American Fertility Society (AFS), which call for "special respect" for embryos because of their uniqueness and potential for human life. The court then quoted the AFS position that ultimate decisionmaking authority should rest with the gamete providers. However, the standards do not discuss what happens when a dispute develops between these people.

The court then was forced to turn to the situation at hand involving just such a dispute. First, the court stated that an agreement which dealt with the disposition of the embryos, signed between the parties at the time of the procedure, would be valid under contract principles. When the parties did not make such an agreement, as in this case, the parties' interests must be balanced.

The court found in the U.S. and Tennessee constitutions a right to privacy that encompassed the right to procreate and to avoid procreation. The court further stated that no other entity had any interest that could take this decision out of the hands of the individuals whose procreative rights were at stake. It then held that if one party does not want to be a parent, his or her interest always outweighs the other's interest in using the embryos, unless the other cannot become a parent any other way, probably including adoption.

The Tennessee Supreme Court thus upheld the court of appeals, except that it did not endow either party with "veto" power, as the court of appeals seemed to suggest, since a balancing of interests must be done. However, in practice the higher court's result may be very close to a veto, since any other reasonable means of becoming a parent must be unavailable before one party can overcome the other's objection.

A Relationship Paradigm

Does this resolution provide adequate protection for the interests at stake? To answer this question, we must determine not just whether the court resolved the instant case well, but whether its decision rests on principles that others will be able to apply with confidence in future cases. Therein lies a good part of the appeal of the "property" concept for deciding bioethics cases. Property rules protect your right to make choices about things under your dominion. If you own something, you typically have a great deal of freedom to do with it what you want without interference from others, including the state.

Even the "privacy" arguments employed in the reproductive freedom cases of the past quarter century were grounded in constitutional protections of private property from undue intereference by the state. This is especially true in the abortion context, in which defenders of choice speak of a woman's right to do as she wishes with her body, provided she does not harm another person's body--one could change the word body to property and have a basic tenet of property law.

Sometimes "property" may seem a readily available and serviceable rubric. For example, in York v. Jones a U.S. district court held that the Jones Institute for Reproductive Medicine had a bailment interest in their IVF patients' embryos;[5] that is, held them in trust pending transfer in an IVF cycle. Once the Yorks wanted to transfer the one remaining embryo to a fertility clinic in San Diego, the bailment came to an end and the Jones Institute was obliged to relinquish the property it held.

Yet one need not invoke property law to get this result, and, in fact, the York court merely assumed the embryos were property without deciding this issue. It is sufficient to conclude that, as between the Yorks and the Jones Institute, the former have the greater interest in the embryos, just as they would have the greater interest in children without labelling them "property." Moreover in Davis v. Davis the property approach would lead nowhere, since both parties had contributed something of their body. Nor does it seem right to determine rights to decide about the disposition of the embryos based on who had contributed more--Junior through ejaculating sperm or Mary Sue in undergoing surgical aspiration of eggs from her ovaries. As the Tennessee Supreme Court correctly concluded, the parties' dispute was not really about the tangible embryos but about whether one party could exercise her choice to become a parent when doing so necessarily involves the other in becoming a parent as well.

Given the Tennessee Supreme Court's recognition that what is at stake is the relationship--now potentially altered in many ways by biomedical science--among people who are in some way or ways "parents" to a child, one aspect of its decision in Davis is puzzling, and disappointing. The court held that an agreement between the parties made prior to the beginning of the IVF procedure "should be carried out" if a dispute arises later. Yet the court also held that in the absence of such an agreement "the party wishing to avoid procreation should prevail," provided that the other party has some reasonable possibility of becoming a parent by other means. It is difficult to reconcile this strong right to avoid involuntary parenthood with deference to prior agreements. Certainly a couple's agreement, prior to marriage, that they would have children would not be sufficient to compel them to go forward with reproduction if either concluded that he or she did not want to become a parent with the other. Contracts are a fine way to make binding agreements about the disposition of property, but they are much less appropriate when deciding about personal relationships, especially ones like joint parenthood that would be purely hypothetical at the time that a couple undergoing IVF would sign the contract.


[1.] Lori B. Andrews, "My Body, My Property," Hastings Center Report 16, no. 5 (1986): 28-38, at 37.

[2.] Moore v. The Regents of the University of California, 271 Cal. Rptr. 146, (1990).

[3.] Davis v. Davis, 1990 Tenn. App. LEXIS 642 (13 Sept. 1990), discussed in George J. Annas, "Crazy Making: Embryos and Gestational Mothers," Hastings Center Report 21, no. 1 (1991): 35-38.

[4.] Casey v. Planned Parenthood of Southeastern Pennsylvania, 60 U.S. L.W. 4795 (1992).

[5.] York v. Jones, 717 F. Supp. 421 (E.D.Va. 1989).
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Title Annotation:At Law
Author:Capron, Alexander Morgan
Publication:The Hastings Center Report
Date:Sep 1, 1992
Previous Article:A pregnant fellow.
Next Article:Body, self, and the property paradigm.

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