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Crazy making: embryos and gestational mothers.

George J. Annas is Utley Professor of Health Law, and director of the Law, Medicine and Ethics Program, Boston University Schools of Medicine and Public Health.

The new reproductive technologies, especially in vitro fertilization (IVF) and embryo transfer (ET) continue to challenge our imaginations and our courts. Do we need new laws to deal with this technology, and if so, what should they be? Two questions have recently been dealt with by courts, with varying degrees of success: Should individuals be forced to agree on the disposition of embryos created from their gametes? And when motherhood itself is "split" between genetics and gestation, should genes, contracts, or biology alone determine the status of "mother" and child?

The Case of the Leftover Embryos:

The first case involved the status of seven frozen embryos, produced during an IVF procedure, whose custody was contested in a divorce action, Davis v. Davis.[1] Mary Sue Davis wanted the embryos implanted in her so she could have a child; junior Davis wanted them to continue in their frozen state. The trial judge ruled that the embryos were children, and awarded custody to Mrs. Davis. This "crazy-making" result has now been reversed by an appellate court that sensibly observed that even though embryos have been "accorded more respect than mere human cells because of their burgeoning potential for life ... even after viability they are not given legal status equivalent to that of a person already born." The court ruled that the couple "shared an interest in the seven fertilized ova," and concluded that they should be given Joint control ... with equal voice over their disposition."[2] In other words, the genetic contributors, not the court or anyone else, will decide what to do with the embryos. If they fail to agree, the embryos will remain frozen. This nondecision strikes me as a reasonable one, although it challenges us to give content to the phrase "worthy of respect," as in "human embryos are worthy of respect." Embryos are neither children nor furniture, but have a unique, "exotic" status that demands unique rules. The gene-based "solution" is probably as well as we can do for now. But should the genetic contributors get to make all the decisions even after the embryo becomes a baby by virtue of being nurtured in a "surrogate" mother's womb?

The Anna Johnson Case:

The answer to this question involves the status of the embryo gestator, the woman we used to simply call "mother." It was the central issue in a California case in which Crispina and Mark Calvert hired Anna Johnson, a young, single, black nurse to gestate an embryo composed of their egg and sperm and to give the resulting child to them for a fee of $10,000. Mrs. Calvert was unable to bear a child because of a hysterectomy. Near the end of Anna Johnson's pregnancy, she sought to retain custody of the child. Genetic testing confirmed that the child, Christopher, born 19 September 1990, had no genetic relationship to Ms. Johnson. Following a hearing, Judge Richard N. Parslow, Jr., rendered an oral opinion from the bench, concluding that Crispina alone should be considered Christopher's mother:

Anna Johnson is the gestational carrier of the child, a host in a sense .... she and the child are genetic hereditary strangers .... Anna's relationship to the child is analogous to that of a foster parent providing care, protection, and nurture during the period of time that the natural mother, Crispina Calvert, was unable to care for the child.[3]

The judge bolstered this opinion by mentioning twin studies that showed that genetics was more important than environment, by finding that the contract was valid, and by concluding that giving the child exclusively to the Calverts was in the best interests of the child. As to the contract, the judge said that the "relinquishment" provision was "enforceable by... specific performance, arguably even by habeas corpus, if necessary."

On the issue of the child's interests, the judge said,

I think a three-parent, two-natural-mom claim in a situation is ripe for crazy making, as they say nowadays, involving a high probability of that happening in this case given the parties we have involved .... this create confusion in a child-having a three-parent arrangement.

The judge went on to make "some suggestions for the legislature," including a state law requiring: that the parties undergo intensive psychological evaluation by an independent agency; that the genetic mother be medically unable to carry a child to term; a clear understanding that the surrogate" will have no parental rights; and that the "surrogate" have previously given birth to at least one child.

Baby Selling:

Having initially said that this "is not a baby selling case, it's not a Baby M-type case where, we had natural parents on two sides of a situation. It's none of those things," the judge nonetheless returned to baby selling near the end of his opinion:

I see no problem with someone collecting-the general going rate appears to be $10,000, getting paid for your pain and suffering, shall we say. I haven't carried a child myself, but from what I've seen, it's a tough program. And I think altruism aside, there is nothing wrong with getting paid for nine months of what I understand to be a lot of misery and a lot of bad days .... they are not selling a baby, they are selling, again, the pain and suffering, the discomfort, that which goes with carrying a child to term.

The judge concluded Kith a quotation from Democritus, "Everywhere man blames nature and fate, yet his fate is mostly but the echo of his character and passions, his mistakes and weaknesses."

Like the trial court decision in Davis, this opinion seems simply wrong, and is also likely to be reversed on appeal. The judge's denial of any relevance of the Baby M case is particularly unpersuasive. That case, of course, declared that contracts of this type could not be specifically enforced, and were void because they amounted to baby selling.[4] The New Jersey Supreme Court correctly determined that what money is being spent for is a child, not nine months of gestational services. If all that was being purchased was "pain and suffering," Anna Johnson earned her money without giving up the child. Moreover, the pain and suffering of being forceably separated from one's child lasts a lifetime.

It has been suggested that society knowingly employs a double standard here: we see it as much worse to sell a child than to buy one. This may be because we view any woman who is willing to sell her child (even if she later changes her mind) as suspect and a poor risk to raise the child. It may also be because of the common class difference between purchasers and sellers: the middle class approves of their members buying babies from poor women. This particular case may also have seemed especially easy for many because the gestational mother was black, although the judge himself carefully refrained from even mentioning race in his opinion.

The Genetic Difference:

The case is, of course, different from Baby M in one critical way: Anna johnson is not genetically related to the child she bore. The legal and social policy question is whether this is a distinction that should matter. Contrary to prevailing legal presumptions, and the ethical standards of the American College of Obstetricians and Gynecologists,[5] the judge concluded that it should.

An intermediate solution to the "all or nothing" genetics or gestational approach would recognize that there arc two women who have legitimate maternal ties to the infant, and each should have some role in rearing the child. Such a solution would be analogous not to trying not to decide whether an embryo is furniture or a child, but rather, to defining some intermediate status for the embryo. Fashioning such maternal accommodation is at least as challenging a problem as determining the proper status of the human embryo, and it is not surprising that Judge Parslow wanted nothing to do with it. On the other hand, multiple-parent arrangements are commonplace in society, for example, in divorce followed by remarriage.

Seeing the three-parent approach as "crazy making," he opted for the genetic parents, whom he consistently described as the child's "natural" parents. But using the word natural" to describe the genetic parents no more solves the problem of choosing one mother over the other than calling an embryo a "preembryo" helps us to determine its proper status. These "natural" parents are actually the most "unnatural" of all parents, having had their gametes combined by a physician in a petri dish, and the resulting embryo artificially implanted into the uterus of an unrelated woman for gestation and birth. If nature is to guide this decision, the activities of the gestational mother were much more "natural" than those of the genetic mother and father.

The Twin Studies:

It is not nature as natural, but nature as genetic that determined the outcome of this case. In the judge's words, "who we are and what we are ... is a combination of genetic factors. We know more and more about traits now, how you walk, talk, and everything else, all sons of things being equal, when your immune system is going to break down, what diseases you may be susceptible to." Referring to an article in Science that had been published during the last week of the trial, he observed, They have upped the intelligence ratio of genetics to 70 percent now." He then went on to compare not genetics to environment, but genetics to the "gestational environment" although by this he seems to mean "uterine bonding" rather than the impact of the pregnant woman's health, smoking, drug taking, nutrition, etc. on the child. It is worth noting in passing that there are no studies on the effect of the uterine environment versus genetics. Such studies would require the cloning of an embryo to produce at least twins. One embryo could be gestated by the genetic mother, the other simultaneously by a nongenetic mother. The resulting children would then have to be raised together. Differences in the children might then be traceable to the uterine environment (since their genetic composition and postbirth environments would be identical). The judge was, however, correct in noting that twin studies consistently indicate that about 70 percent of observed variation in IQ is attributable to genetic variation. These studies are limited to middle-class individuals in industrial societies, and also indicate that the way in which children are raised in modem Western society "does not greatly constrain the development of individual differences in psychological traits." The authors of the twin studies reported in Science do not make major claims for their research to date, stating only that if the genome impresses itself on the psyche largely by influencing the character, selection, and impact of experiences during development-if the correct formula is nature via nurture-then intervention is not precluded even for highly heritable traits, but should be more effective when tailored to each specific child's talents and inclinations.[6]

The judge, however, seems to be making a different claim: that genetics determines our individuality, and therefore the genetic contributors have a higher claim to raise and make decisions for a child than anyone else, including the child's gestational mother. It should be noted, however, that one could arrive at the opposite conclusion using the same data. If genetics determines 70 percent of our IQ and most of our psychological makeup, regardless of the type of home environment we Ire raised in within Western middle-class society, then it becomes very difficult to make a "best interests" of the child argument for rearing by the genetic parents. The child will likely do as well with any parents, because the child's genes, rather than its environment, will determine its future. We must thus go beyond genes to give any meaningful answer to the question of the child's best interests.

The Status of Pregnancy:

Stopping at genes to define motherhood also raises serious problems. The first is that it demeans pregnancy, and so demeans women. Although the trial judge did not say it directly, he seemed to say indirectly that since men can't be pregnant, pregnancy, while full of pain and suffering, can't be very important. Both men and women can contribute genes, therefore the judge believed he was treating men and women alike by only counting their genetic contribution to the child to determine parenthood. Gestation and childbirth, it seems, are to be equated with ejaculation.

In addition to marginalizing pregnancy and childbirth, determining parenthood exclusively on the basis of genes also makes the ovum donation programs, such as those reported in the New England Journal of Medicine the same week this case was decided, especially problematic.[7] In those programs, women who have a uterus, but who cannot produce ova, either because of menopause or for other reasons, obtained a donor egg, which was fertilized with their husband's sperm, and carried the resulting embryo to term. There were, of course, no contracts signed in these cases. Nonetheless, if the judge in California is correct and genetics is outcome determinative, these women are not the mothers of these children; the egg donors are the mothers. If this is true, these women would have to go through a formal adoption procedure to obtain legal rights in the children they have gestated and given birth to. I think this is a nonsensical conclusion, and one that should lead us to continue the current legal presumption: the woman who gives birth to the child should irrebuttably be considered the child's legal mother.[8] She could agree to give the child up for adoption, but only after its birth, and in accordance with the state's adoption laws.

This rule protects all women and their children, and provides certainty in identifying the mother in all cases. In this sense it is analogous to recognizing the husband of the woman who gives birth to a child as the child's father, even if the child is the product of artificial insemination. This rule also helps assure that the pregnant woman alone will continue to have ultimate decision-making authority for her own medical care throughout her pregnancy, and that attempts by genetic parents to treat her simply as a "womb for rent" will fail.

We may actually want to see our fate determined by our genes so that we can avoid responsibility for problems of our own invention. But this will not do. Judge Parslow's quotation of Democritus is ironic in view of his genetically determined decision. Shakespeare improved upon Democritus in Julius Ceasar, but the words of Cassius to Brutus began a period of Roman "crazy making" as well:

Men at some times are masters of

their fates.

The fault, dear Brutus, is not in our


But in ourselves....


1. The trial court's opinion is discussed in detail in George J. Annas, A French Homunculus in a Tennessee Court," Hastings Center Report 19, no. 6 (1989): 21-23.

2. Davis v. Davis, 1990 Tenn. App. LEXIS 642 (13 September 1990).

3. Johnson v. Calvert, Cal. Super. Ct., Orange Co., Dept. 11, No. X633190 (22 October 1990). The judge indicated that a formal written opinion would follow. It was not available for this article.

4. Discussed in George J. Annas, "Death without Dignity for Commercial Surrogacy," Hastings Center Report 18, no. 2 (1988): 21-24.

5. American College of Obstetrics and Gynecology, Committee on Ethics, "Ethical Issues in Surrogate Motherhood," no. 88, November 1990.

6. Thomas J. Bouchard et al., "Sources of Human Psychological Differences: The Minnesota Study of Twins Reared Apart," Science 250 (12 October 1990): 223, 228.

7. E.g., Mark V Sauer, Richard J. Paulson, Rogerio A. Lobo, A Preliminary Report on Oocyte Donation Extending Reproductive Potential to Women over Forty," NEJM 323 (25 October 1990): 1157-60.

8. Sherman Elias and George J. Annas, "Social Policy Considerations in Noncoital Reproduction," JAMA 255, no. 1 (1986): 62-67.
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Title Annotation:At Law
Author:Annas, George J.
Publication:The Hastings Center Report
Article Type:column
Date:Jan 1, 1991
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