Background

History

In 1978, a technological miracle named Louise Brown was born in a hospital in the U.K. to John and Mary Brown.¹ Thanks to the then-revolutionary technique of in vitro fertilization (IVF) developed by Doctors Patrick Steptoe and Robert Edwards, an infertile couple was able to conceive and have a seemingly normal healthy child. The first successful IVF treatment in the United States was in 1981, producing a baby girl named Elizabeth Jordan Carr. Since then, approximately 1% of births per year are a result of IVF or other assisted reproductive technologies (ART).

Technology

• In Vitro Fertilization (IVF)²:
  In this process, eggs are extracted from a woman using fertility drugs to encourage the production of multiple eggs. The eggs are then fertilized in the laboratory, and the resulting embryos are subsequently implanted into the woman's uterus.
  
  
• Gamete Intrafallopian Transfer (GIFT)³:
  In this process, unfertilized gametes are placed into the woman's fallopian tubes using a laparoscope. The goal is then for fertilization to occur in the fallopian tubes.
  
  
• Zygote Intrafallopian Transfer (ZIFT)⁴:
  Like IVF, a woman¹s eggs are fertilized in the laboratory, but, unlike IVF, the fertilized eggs (zygotes) are injected into the woman¹s fallopian tubes using a laparoscope.
  
  
• Pre-implantation Genetic Diagnosis (PGD)⁵:
  During IVF, genetic testing can be done on embryos prior to implantation. Once an egg is fertilized, a single cell can be selected and analyzed using various techniques, including DNA sequencing and fluorescent in-situ hybridization (FISH). These tests look for signs of genetic disorders, among other things. Determination of sex also can be done at this stage.

Issues⁶

• Misappropriation and Mishandling of Eggs and Embryos
  ART treatments have given rise to a complicated set of issues related to the misappropriation and mishandling of eggs and embryos by both patients and practitioners. In 1995, infertility physicians at the University of California at Irvine fertility clinics were accused of stealing and using gametes and embryos from some patients for use in other patients or in research without patient consent. After the scandal broke and charges were filed by the state, the university entered into a settlement for $200 million.⁷
  
  In another complicated example, in 1998, two couples, the Fasanos and Rogers, underwent IVF treatments at a fertility clinic in New York. Both women were implanted with embryos, but the procedure was only successful for Mrs. Fasano, who ultimately gave birth to a set of twins. A month after the procedures, both couples were informed that a mix-up had occurred and that Mrs. Fasano had been accidentally implanted with some of the embryos created from the Rogers¹ gametes. DNA testing confirmed that one boy was the genetic offspring of the Fasanos while the other boy was the genetic offspring of the Rogers. Both couples eventually agreed that the Rogers would take custody of their son, granting visitation rights to the Fasanos. However, the Rogers eventually sued for sole custody, which was granted and then upheld on appeal.⁸ The court ruled that the Fasanos had no parental rights and, therefore, no rights to enforce the visitation agreement.
  
  
• Posthumous Children
  With the development of ART, the issue of "posthumous parenting by intent" has become a real issue. Previously, situations of posthumous children involved the rare situations where either a woman would be widowed during pregnancy or where a pregnant woman is declared dead but maintained on artificial respirators until the child could be born. However, with the ability to freeze gametes for later use, novel situations have arisen where a partner may take sperm or oocytes from a deceased loved one and use them to initiate pregnancies. Such situations raise a host of ethical, legal, and social issues, including: whether an embryo should be viewed as "property," consent of the oocyte and sperm donors, posthumous inheritance, and determination of legal parentage.⁹
  
  
• Gamete Market
  A new market for gametes was created with the advent of ART. Couples could help ensure successful procedures through the procurement (or purchase) of ³superior² sperm or oocytes from young and healthy donors. Furthermore, this has led to the introduction of "designer babies," which are created when parents select sperm or oocytes from donors that carry specific characteristics, such as increased intelligence, athleticism, or specific physical attributes. As an example, in 2005, a company from Denmark opened a branch of a sperm bank in Manhattan and advertised sperm samples from 50 Danish men to fertility clinics and patients. Their controversial slogan was: "Congratulations! It's a Viking!" The company claims that up to 10,000 babies have been born using sperm from these donors.¹⁰ Such marketing, commercialization, and selection of gametes raise the specter of eugenics.
  
  
• Surrogacy
  Surrogacy is the practice of arranging for a woman to become pregnant with and carry a child to be raised others. There are two types of surrogacy, traditional or genetic (where the surrogate mother also donates the ovum) and gestational (where the surrogate mother is implanted with the embryo of another couple).¹¹ The key ethical issues with surrogacy are potential exploitation of the surrogate mother and/or the couple, the legal implications of the contract between surrogate mother and couple, and the welfare of the child resulting from the arrangement.¹²
  
  The case of Baby M in the 1980s raised public awareness of these issues.¹³ In that case, the Sterns contracted with a woman named Mary Beth Whitehead to be a traditional surrogate mother for them for the sum of $10,000. Mrs. Stern had been diagnosed with early stages of multiple sclerosis (MS) and could not, due to potential complications from MS, carry a child herself. However, after the birth of Baby M, Whitehead refused to turn the child over to the Sterns as agreed in the contract. The Sterns went to court for custody of the child.¹⁴ In a controversial decision, the New Jersey lower court awarded the Sterns custody of Baby M despite calls by feminist and family law experts to keep the child with Whitehead. The case eventually went to the New Jersey Supreme Court, which overturned the decision and remanded the case to a family court. The family court ruled that Baby M should remain with the Sterns but recognized Whitehead's parental rights.
  
  Today, while surrogacy is widely used, it is more tightly regulated in the United States (on a state-by-state basis). Now, couples are looking outside of the United States to countries such as India as a source of surrogate mothers. In the United States, surrogate mothers are typically paid between $15,000 and $30,000. However, in India, the costs in range from $2,500 to $6,500.¹⁵
  
  
• Sex Selection
  With the advent of ART and PGD, couples are able to successfully select the gender of their children. In the 1970s, the technique of sex selection involved using ultrasound and prenatal chromosomal testing to determine the sex of the child and then aborting fetuses that were not of the desired sex.¹⁶ This raised many ethical, moral, and social issues, including gender discrimination and misogyny. With PGD, today's sex selection methods involve testing embryos prior to implantation. This raises concerns about the discarding of embryos that are of the undesired gender. Pre-fertilization sex selection may soon become possible with new techniques being developed to separate sperm carrying X chromosomes versus sperm carrying Y chromosomes.¹⁷
  
  The most widely accepted scenario for sex selection is the prevention of sex-linked genetic disorders.¹⁸ However, with the possibility of pre-fertilization gender selection, more and more clinics are offering so-called "sex selection for social reasons," creating an ART market of healthy couples and individuals who would otherwise not use ART.¹⁹ In fact, couples are flocking to the United States to take advantage of a the availability of sex selection because of bans on the practice in other nations.²⁰ The most commonly cited reason for sex selection is "family balancing," a situation in which most or all of the children in a family are of one gender and a child of the other gender is desired. Nevertheless, in some countries, such as China and India, boys are culturally favored, and in the past, sex selection has led to an alarming decline in the birthrate of girls in these countries.²¹
  
  
• "Savior Siblings"
  On April 28, 2005, the British House of Lords ruled that a couple from Leeds had the right to use PGD to select for an embryo with tissue that matched that of their existing child.²² The child had been diagnosed with a potentially fatal genetic disorder called beta-thalassemia. The treatment for the disorder required monthly blood transfusions. The couple wished to be able to screen their next embryo for compatible blood to match and had successfully petitioned the Human Fertilisation and Embryology Authority (HEFA) to allow them to use PGD. However, groups opposed to the use of PGD screening filed suit challenging HEFA's authority.
  
  

  A recent survey indicated that 61% of Americans approved the use of PGD to select an embryo to benefit a sick sibling.²³ Not long after the survey, a Chicago Tribune article reported that five babies were born in Chicago to a couple with several older children suffering from a rare form of leukemia, with no known genetic component.²⁴ In the article, a bioethicist from the University of Pennsylvania pointed out some of the shortcomings of the use of savior siblings. One concern is that the savior sibling has little or no choice in whether or not to donate.

  
  ¹P.C. Steptoe & R.G. Edwards, Birth After the Reimplantation of a Human Embryo, 2 LANCET 366 (1978).
  
  ²Id.
  
  ³T. Henriksen & T. Abyholm, Pregnancy After Gamete Intrafallopian Transfer, 66 ACTA. OBSTET. GYNECOL. SCAND. 375 (1987).
  
  ⁴M.R. Fluker, M.W. Bebbington, & M.G. Munro, Successful Pregnancy Following Zygote Intrafallopian Transfer for Congenital Cervical Hypoplasia, 84 OBSTET. GYNECOL. 659 (1994).
  
  ⁵B.E. Rubinoff, A. Lewin, M. Verner, A. Safran, J.G. Schenker, & D. Abeliovich, Intracytoplasmic Sperm Injection Combined with Preimplantation Genetic Diagnosis for the Prevention of Recurrent Gestational Trophoblastic Disease, 12 HUM. REPROD. 805 (1997).
  
  ⁶For an overview of ethical issues associated with ART, see Nigel M. de S. Cameron, Pandora¹s Progeny: Ethical Issues in Assisted Human Reproduction, 39 FAM. LAW QUART. 745 (2005).
  
  ⁷For a detailed description of the scandal surrounding the prestigious Center for Reproductive Health, see MARY DODGE & GILBERT GEIS, STEALING DREAMS: A FERTILITY CLINIC SCANDAL (2003).
  
  ⁸Perry-Rogers v. Fasano, 715 N.Y.S.2d 19 (N.Y.A.D.1 Dept. 2000).
  
  ⁹See the U.K. case of Diane Blood, who conceived using her husband's sperm after his death, raising questions as to whether the deceased had given permission for that use. For a recent article on legal issues related to posthumous heirs, as well as consent issues associated with sperm donation, see Susan N. Gary, Posthumously Conceived Heirs, GPSOLO (Sept. 2005), available at http://www.abanet.org/genpractice/magazine/sept2005/
  posthumousheirs.html.
  
  ¹⁰The company is called Scandinavian Cryobank and has information available at: http://scandanaviancryobank.com/. For an article on the subject, see Jamie Talan, 10,000 Little Vikings: Company in Denmark Proliferates as Demand for Designer Babies Grows, SAN FRANCISCO CHRONICLE, June 5, 2005, at A-2, available at http://www.sfgate.com/cgi-bin/article.cgi?file=
  /c/a/2005/06/05/MNG4ND3RNL1.DTL.
  
  ¹¹See The American Surrogacy Center, Surrogacy: Practical Medical Aspects, available at http://www.surrogacy.com/medres/article/aspects.html.
  
  ¹²Ethics Committee of the American Society for Reproductive Medicine Report, Family Members as Gamete Donors and Surrogates, 80 FERTILITY AND STERILITY 1124 (2003). This committee report looks at the intricate ethical issues involved with familial gamete donation and surrogacy, and lists recommendations for what types of relationships were permissible in gamete donation and surrogacy.
  
  ¹³Katha Pollitt, The Strange Case of Baby M, THE NATION, May 23, 1987, available at http://www.thenation.com/doc/19870523/19870523pollitt.
  
  ¹⁴In re Baby M, 537 A.2d 1227 (N.J. 1988).
  
  ¹⁵Anuj Chopra, Childless Couples Look to India for Surrogate Mothers, THE CHRISTIAN SCIENCE MONITOR, Apr. 3, 2006, available at http://222.csmonitor.com/2006/0403/p01s04-wosc.html.
  
  ¹⁶Marcy Darnovsky, Revisiting Sex Selection: The Growing Popularity of New Sex Selection Methods Revives An Old Debate, 17 GENEWATCH 4 (2004), available at http://www.gene-watch.org/genewatch/articles/17-1darnovsky.html.
  
  ¹⁷Ethics Committee of the American Society for Reproductive Medicine, Preconception Gender Selection for Nonmedical Reasons, 75 FERTILITY AND STERILITY 861 (2001).
  
  ¹⁸ACOG COMMITTEE ON ETHICS, ETHICS IN OBSTETRICS AND GYNECOLOGY 37 (2004).
  
  ¹⁹Id.
  
  ²⁰Marc Lavine, Designer Babies? Couples Flock to US to Choose Next Baby¹s Sex, AFPNews (2006), available at http://news.yahoo.com/s/afp/20060514/hl_afp/
  afplifestyleusgender_060514195122.
  
  ²¹Judith Banister, Shortage of Girls in China Today, 22 J. POPULATION RES. 19, 38 (2004) available at http://demography.anu.edu.au/jpr/issues/21-1/JPR21-1_Banister.pdf.
  
  ²²Simon Freeman, Law Lords Rule in Favor of ŒSaviour Siblings,¹ TIMES ONLINE (Apr. 28, 2005), available at http://www.timesonline.co.uk/article/0,,2-1589372,00.html.
  
  ²³Johns Hopkins University Genetics & Public Policy Center, Genetic Testing of Embryos to Pick ŒSavior Sibling¹ Okay with Most Americans (2004).
  
  ²⁴Peter Gorner, 5 Babies Born to Save Ill Siblings Doctors Say, CHICAGO TRIBUNE, May 5, 2004, at 7.