Fall, 2005
I will examine aspects of the current embryo "adoption"
controversy introduced by Sarah-Vaughan Brakman (Lahey Clinic Medical Ethics, Spring 2005)
through the lens of law and policy. I will begin by looking at possible legal
and policy responses to the concerns of those who regard an embryo as morally
equivalent, or nearly morally equivalent, to a child.
Legal and Policy Responses
Our society is sharply divided over the moral status of a
human embryo. If the segment of society committed to full(er) moral status for
embryos is given some policy space, at least three options are possible: 1)
avoid any public expenditure that supports or promotes embryo destruction, 2)
expend public funds to promote the use of embryos for purposes of reproduction
or 3) require implantation of all viable embryos and/or prohibit embryo
destruction.
The first option is the compromise enshrined in federal law
since 1995 through a rider to an appropriations act and known as the "Dickey
Amendment." This legislation prohibits the use of appropriated funds for the
creation of a human embryo or embryos for research purposes or research in
which a human embryo or embryos are destroyed, discarded or knowingly subjected
to risk of injury or death above the threshold set for research with fetuses in
utero. 1
Using the second option, the Bush administration has spent
over $1 million of public money to promote embryo "adoption." Although this
outrages some commentators, it is, in general, considered legitimate for the
majority to use public resources to advance its agenda, even if others believe
a particular expenditure is wrongheaded or foolish.
Bioethicist Arthur Caplan does not share the view that a
human embryo is the moral equivalent of a human infant. He also makes the
argument that paying for the promotion of embryo adoption is a relatively
ineffective way of helping infertile couples have babies. Caplan writes that
"most frozen embryos are not healthy enough to ever become babies," because the
highest quality embryos are usually used first by the generating couple, and
because over time frozen embryos degrade. 2 But
if the goal of President Bush and his supporters is to help save embryos with
the potential for becoming children from destruction as well as to help the
infertile, this objection is unlikely to change minds or policy.
The third option is the most draconian. A number of
countries have laws that limit the creation and destruction of embryos in ways
that impinge quite significantly on the use of assisted reproductive technologies.
For example, Italy limits fertilization to three eggs at a time and requires
implantation of all resulting embryos. Last year, an Italian judge ordered a
couple to transfer all the embryos produced with their eggs and sperm to the
woman's womb, despite the fact that both the man and the woman carried the
recessive gene for betathalassaemia, wanted preimplantation genetic diagnosis
and would not keep a child born with the condition. 3 Of course, this is an unlikely scenario in the US given the current
state of constitutional law. Yet Louisiana law declares a viable in vitro
fertilized human ovum to be a juridical person "which shall not be
intentionally destroyed." 4 While the goal
of reducing the number of excess embryos is arguably a worthy one, such laws
seem at odds with recognition of moral pluralism and with respect for privacy
and the intimate nature of procreation.
Terminology
Brakman notes that debate exists over the terminology that
should be used to describe the transfer of an embryo from the progenitors to
others and states her own position in support of the use of the word
"adoption." My ambivalence is reflected in my repeated placement of that word
within quotation marks. Brakman links her position to information on how
participants feel about or regard what is going on. Others accept or reject the
use of the word "adoption" according to how they stand on the question of moral
status. Nightlight Christian Adoptions, which runs the Snowflakes Embryo
Adoption Program, describes embryos as "pre-born children" of the "genetic
parents" and uses the word adoption to describe the transfer to another couple,
because it reinforces the view that an embryo is just like a baby in all
important respects. 5 Caplan sees the use
of adoption language as a rear-guard attack on human embryonic stem cell
research.
Caplan also believes that the rhetoric of adoption is
deceptive given the low odds that a frozen embryo will become a baby even where
every effort is made to realize that end. The National Embryo Donation Center
notes that "only about two-thirds of embryos survive the thawing process" (other
advocates say
only half), and the "chance of pregnancy after transfer of frozen embryos is
currently 20-25%." 6 The statistic that
likely matters most to prospective recipients is the chance of bringing home a
baby, often referred to as the "take-home baby" rate, which tends to be
considerably lower.
Does use of the word "adoption" imply that prospective
parents should be subjected to background checks to assure that the gestational
couple will be good parents? In unassisted reproduction, restraints based on
evidence of unsuitability to parent are rare and controversial. In assisted
reproduction, assessment is much less systematic than in the case of adoption,
though clinics appear to do some screening. 7, 8 While
I believe that professionals involved in aiding conception have a
responsibility to attend to the welfare of future children, the challenge in
assisted reproduction is distinguishing between standards based on reasonable
evidence-based consensus about characteristics likely to be inconsistent with
good parenting and standards based on unreflective prejudice.
Finally, as even the National Embryo Donation Center
acknowledges, "[b]ased on current law, adoption only refers to the placement of
a child after birth." 6 "Regardless of what
terminology is used to explain the procedure, adoption law does not and cannot
apply to donating embryos because many state statutes specifically invalidate
biological parents' consent to adoption that is given prior to childbirth." 9 In short, state adoption laws are not
currently being applied to embryo donation. If embryo transfer were to be
subsumed under the law of adoption, donors would retain the power to assert
parentage throughout the pregnancy, and if a donated embryo results in a child,
the gestational mother might have to return the baby to the genetic parents.
The Uniform Parentage Act, a model act offered as a guide to
state lawmakers, creates certainty about assignment of parentage in the context
of assisted reproduction. The Act states: "A donor is not a parent of a child
conceived by means of assisted reproduction." 10 (The
definition of assisted reproduction expressly includes donation of embryos.) Rather,
a birth mother who intends to parent the child is the legal mother, and if she
is married, her husband becomes the legal father. The Uniform Parentage Act
approach is commendable for its clarity, but it has been adopted by only six
states to date; however, more states have laws that declare that embryo donors
do not have parental rights and responsibilities.
A pragmatic resolution of the terminology debate might
consist of allowing Nightlight/Snowflakes and others who prefer the language of
adoption for a variety of reasons to use it in peace and to make contracts that
accord embryo donors some of the choices now offered to parents surrendering a
child for adoption (such as playing a role in the selection of the adoptive
parents), while favoring the intent-based approach that makes no distinction
between gamete and embryo donation for purposes of determining legal parentage.
Mary Anderlik Majumder, JD, PhD
Assistant Professor of Medicine Center for Medical
Ethics and Health Policy Baylor College of Medicine Houston, Texas
Footnotes
1 The original version,
introduced by Representative Jay Dickey, was in § 128 of the Balanced Budget Downpayment
Act, I, Pub. L. No. 104-99, 110 Stat. 26 (1996). The most current version
(identical in substance to the rest) is in § 509 of H.R. 3010, the appropriations
bill that, as of the writing of the commentary, has passed the House and is
pending in the Senate in the 109th Congress.
2 Caplan A. "The problem
with 'embryo adoption': why is the government giving money to 'Snowflakes?'"
http://www.msnbc.msn.com/ id/3076556.
3 Turone F. New law
forces Italian couple with genetic disease to implant all their IVF embryos. BMJ
2004;328:1334.
4 Louisiana Revised
Statutes (2005), §§ 9:121, 9:124, 9.129.
5 Nightlight Christian
Adoptions, "Message to Genetic Parents," www.nightlight.org/ message_genetic.asp.
6 National Embryo
Donation Center, "Embryo Adoption Information," http://www.embryo donation.org/adoptions.php.
7 Gurmankin AD, Caplan
AL, Braverman AM. Screening practices and beliefs of assisted reproductive technology
programs. Fertil Steril 2005;83:61-67.
8 Stern JE, Cramer CP,
Green RM, Garrod A, DeVries KO. Determining access to assisted reproductive technology:
reactions of clinic directors to ethically complex case scenarios. Hum Reprod 2003;18:1343-
1352.
9 Kindregan CP, McBrien
M. Embryo donation: unresolved legal issues in the transfer of surplus cryopreserved
embryos. Vill L Rev 2004;49:169-206,
at 175.
10 National Conference
of Commissioners on Uniform State Laws, Uniform Parentage Act (2002), §§ 102,
702. For information on state legislative action with regard to the Uniform
Parentage Act, see http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-upa.asp.
Response: Professor Majumder's reply enriches our
appreciation of the political and legal difficulties regarding embryo adoption.
Those like Caplan who assume "adoption" terminology necessarily implies a moral
status claim about embryos, however, are mistaken. Pets are adopted, so are
laws and highways. I readily agree that some may in fact use the term to draw
the connection between infants and embryos, but logically there is no direct
implication from one to the other.
I do not argue for the use of the word adoption, but rather for
the use of the adoption
paradigm. Though some law at present equates gamete donors and embryo
donors for the purposes of determining parentage, there is a distinction of
note here. Gamete donors never intended to actively parent. Embryo "donors"
originally intended to be parents. To equate couples' interests in the
disposition of their embryos to those of gamete donors (as most fertility centers
do when denying couples the ability to choose the gestational couple or to know
the outcome of the "donation") is to gravely mistake the reality of these
families' lives and to inappropriately conflate the two practices.
Professor Majumder asks if "adoption" implies screening for
the gestational couple. The answer is yes. While legally pre-adoption screening
may represent the state's interests in ensuring the welfare of its most
vulnerable citizens, birth parents who place their infants with adoptive
parents expect, indeed demand, that adoptive couples have undergone such
screening. From the data I found, screening would increase the availability of
embryos for adoption. Perhaps what is troubling is that it seems like these
"fertility patients" would be treated unequally compared to other patients at
the clinics who are not subject to any screening. While this may be, they would
not be treated unfairly, because the situation by definition would be different
than all others; the "gestational" couple would be choosing to bear and rear
children from another couple's once valued embryos. No such prior interest in
genetic material exists for any other assisted reproductive technology alternative.
Finally, Professor Majumder correctly worries that applying
current adoption laws to embryo adoption would have disadvantages making the
practice unattractive. Surely laws may be amended, or new regulations proposed
specific to embryo adoption that acknowledge its unique place in the spectrum
between the donation of genetic material and the gift of a born child.
Sarah-Vaughan Brakman, PhD
Director, Ethics Program Villanova University
A question of status The Medical Ethics Forum from Harvard
Medical School in the Spring 2005 Medical
Ethics begs an important question by granting prisoners at Abu
Ghraib and Guantanamo status under the Geneva Convention. Actually, Article 4
of the Geneva Convention delineates persons covered by its provisions as
consisting of armed forces, as well as irregular forces, such as militias, provided
that such irregular forces fulfill certain conditions, including: 1) having a fixed
distinctive sign recognizable at a distance (uniform), 2) carrying arms openly
and 3) conducting their operations in accordance with the laws and customs of
war. Obviously, clandestine individuals involved in a campaign that features
suicide bombers and the beheading of civilian non-combatants do not fulfill
these conditions and, therefore, are not subject to the provisions of the
Geneva Convention. The Presidential Directive acknowledged that Abu Ghraib and
Guantanamo prisoners (with some exceptions) are not covered by the Geneva
Convention but still called for humane treatment of detainees, because such
treatment is in accord with our American tradition.
Michael W. McDonald, MD
Natick, MA
in collaboration with
Dartmouth-Hitchcock Medical Center
The opinions expressed in the journal, Lahey Clinic Medical Ethics,
belong to the individual contributors and do not represent the institutional position
of Lahey Clinic on any subject matters discussed.
