Frozen embryos, and babies kept on ice

[James Maule]

Thanks for the info. My curiosity is in part simply wanting to learn and in part trying to hone my understanding of the technology so that I can enrich the discussion in the Decedents course about inheritance, survival, estate closing, rights of pretermitted children, etc etc. There are both practical and legal (constitutional and otherwise) concerns, all sorts of questions, and few answers.

Substantively, I like to draw analogies. The law relating to adoption, for example, provides some parallels or tangents. One principle adopted in some states is that one "cannot force an heir" on someone else. Hence, adopted children inherit FROM adoptive parents but not THROUGH the adoptive parents. So if one of two parents is permitted to go forward to implant an embryo that the other parent doesn't want to develop, perhaps the same principle will apply. Perhaps not. (After all, the UPC and most state statutes fail to deal well with the case of a child adopted by a step-parent who marries one of the child's adoptive parents who is divorced from the other adoptive parent who surrenders parental rights).

Ultimately, the issue and related issues involving transplants, organ donation, etc. will require the answering of questions such as "Are body parts property?" "What are body parts?" "When does a body part become a human?" etc. To the extent the courts have "punted" on these questions, finding other ways to resolve issues, eventually one of the cases, posing one of the questions you raise or that are raised in the Decedents area, will force their hand. The constitutional implications suggest that the Supreme Court will end up weighing in on the answer.

The most amazing thing is that I somehow can't get across to students that THEY will be "in on" the development of law in this area, that the "tell me the black letter law" routine doesn't get the job done in this regard, and that in some ways they'll be experiencing a very intellectually exciting time to practice law. Aside from one or a few, they stare at me blankly. I don't get it.



Jim Maule
Professor of Law
Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule


>>> RichardsE at UMKC.EDU 09/29/00 09:51PM >>>
> Query: who pays for keeping them frozen? What are the costs
> in comparison to implantation and birth?

Generally they just stay in the freezer with other embryos that are waiting for
implantation if the first/second/third try fails.  They take little room and the
incremental cost of storing a few is very low.  The problem arises as they
accumulate and start using up freezer space.  The incremental cost of storage
for years would be much lower than even a single try at implantation.  The
problem arises when you cannot locate the "parents" or when they do not want
them destroyed - if they do not want to pay the storage, it is a little
different from just tossing the stuff when you defrost.  The Brits passed what
is essentially an expiration law, allowing the embryos to be destroyed after a
set period of time.  This has some medical significance as well - we do not know
how long you can keep them before subtle deterioration sets in, and it is not
something you really want to find out.  The laws treat them like abandoned
property, except that they do not authorize the selling or implantation, just
destruction.  Someone might know better than I, but I do not think it is
mandatory, it only permits the destruction.  The lab can keep them around.
(Especially if it does not tell the government.)

If the lab collects anonymous eggs and sperm, it can make embryos that escape
the existing case that derives from property concerns.  Does the lab then own
them?  Can it sell them, or as the sham goes, sell the service of providing
them?  I do not think there are any federal regulations about international
shipment of eggs/sperm or embryos - could the lab buy them outside the US and
market them here?  Could the lab hire a surrogate to carry them to term and end
up a corporate parent? Does the kid escheat to the state in that circumstance?

Ed

Edward P. Richards
Executive Director - Center for Public Health Law
Professor of Law
University of Missouri Kansas City
(816)235-2370 Fax (816)235-5276
richardse at umkc.edu
http://plague.law.umkc.edu