Frozen embryos, and babies kept on ice

[Monopoli, Paula]

Mark's post about parents freezing unused embryos seemed to imply (perhaps
unintentionally) that most couples do this to defer childbearing as a matter
of convenience and at the expense of the embryo.  In fact, the frozen embryo
cases have arisen as a byproduct of assisted reproduction where couples are
trying to have a child as soon as possible.  Mark writes that by allowing a
couple to freeze an embryo we are allowing something to be done to it that
we would not ordinarily allow to be done to a person/baby.  He's correct but
if we do not grant the "right" to the parents, the embryo will either "die"
right then or it must be  implanted immediately.  Such implantation itself
often puts the fetus that may result from the embryo at greater risk of
death or disability than being frozen and implanted at a later date with
fewer other embryos.

The medical protocols limit the number of eggs/embryos that can be returned
to the woman's body to minimize the risk of multiple births.  More than four
eggs/embryos substantially increases that risk and the resulting risk of
premature/disabled babies.  Thus, couples with more than four eggs/embryos
as a result of infertility treatments who freeze the remaining embryos at
the time of the assisted reproductive procedure are doing so to avoid the
later (and many would argue far more morally problematic) choice of having
to abort one or more fetuses if multiples occur as a result of the
procedure.  (Leslie calls destroying embryos "fetal reduction" but in fact
fetal reduction is not the destruction of frozen embryos, it is the abortion
of one or more multiple fetuses that have been conceived and are already
growing in the womb.)

In addressing the issue of post-birth right to control procreation, the
posts so far have focused on the parents' right to destroy the embryo and
whether that is derived from the right (not) to procreate or the right to
bodily integrity.  But (perhaps as an issue for a new thread) what about the
State's role/powers vis a vis frozen embryos?

Many parents who do not affirmatively choose to destroy the frozen embryos
also often fail to later implant the embryos.  They simply allow them to
remain frozen,  for many reasons, not the least of which is the lack of
medical insurance in the vast majority of states to pay for the expense of
implantation.  Should the government provide the means by either mandating
private insurance or providing medical coverage itself to bring these
embryos to fruition for couples who do want to but cannot afford it?  In
other words, is the right to procreate not sufficiently protected unless the
government provides the means to exercise it?  (This is the flip side of the
argument that the State must provide the means for a women to exercise her
right to an abortion through Medicaid funding-otherwise the right is not
sufficiently protected by the State)

As I understand it, Britain has a policy in place that mandates that frozen
embryos be destroyed automatically after five years (without parental
consent if the parents have "abandoned" the embryos and cannot be found.)
The United States has no such policy and would granting the State this broad
power here pass constitutional muster?

What about the constitutionality of a policy that allows the State to
"terminate the rights" of such "abandoning" parents and place the embryos up
for "adoption" by couples who want to bring them to fruition?  With hundreds
of thousands of such embryos "on ice" in this country, it's an issue that
will be taken care of by default if no comprehensive policy is crafted.

(Of course some might argue that to avoid all of these questions, assisted
reproduction itself should not be allowed in the first place as a moral and
ethical matter - but given the fact that it is legal and virtually
unregulated in this country, these issues will continue to require
constitutional analysis.)


Prof. Paula A. Monopoli
Visiting Scholar
University of Maryland School of Law
515 West Lombard Street
Baltimore, MD  21201
(410) 706-4485
pmonopol at law.umaryland.edu