As science races ahead, it leaves in its trail mind-numbing ethical questions.1
Kass v. Kass will never be as famous as Roe v. Wade, but the recent ruling by New York State's highest court may well be just as important.
As everybody knows, in Roe the United States Supreme Court held (on January 22, 1973) that a woman has a constitutional right "to terminate her pregnancy before viability."2 Kass v. Kass, by contrast, is a New York divorce dispute over the custody and control of frozen embryos before pregnancy begins; it was decided by the New York Court of Appeals on May 7, 1998, and it raises an important question: Does the holding in Roe v. Wade control the outcome of a case where no pregnancy yet exists?
In a unanimous decision, the Court of Appeals said "No." Roe v. Wade is about abortion-the "termination of a pregnancy" in utero. By its very terms, Roe does not control a dispute between husband and wife over custody and control of unborn children who exist, or are capable of surviving, outside of the uterus of their mother.
Kass is thus a powerful reminder that the "central holding" of Roe v. Wade is limited by its facts. So is its holding that an unborn child is not a "person" entitled to equal protection of the laws. Advances in medical technology now make it possible for unborn children to survive independently from their mothers much earlier if a pregnancy "terminates" by premature birth or abortion in the later stages of pregnancy. Advances in biotechnology now make it possible for the child to "survive" indefinitely even before pregnancy begins.
Kass thus offers pro-life advocates a "window of opportunity." The New York Court of Appeals holds in Kass that the custody of frozen embryos is controlled by the law of contract. For the first time since the adoption of the Thirteenth Amendment's prohibition of slavery, an American court has held that human beings are to be treated as chattel. We can accept the challenge and make a clearly articulated case for the humanity of the unborn, or we can concede the territory to those who view the unborn as property, to be created and disposed of at will, and for whatever price the market will bear.
I. HOW CAN YOU "TERMINATE" A PREGNANCY THAT HASN'T STARTED YET?
Kass v. Kass is a divorce case. The litigants were Maureen and Steven Kass, a New York couple afflicted by an all-too-common disability: infertility. Like thousands of other couples, they sought help from a medical subspecialty that did not even exist at the time of Roe v. Wade: the "infertility specialist."
Their first attempt at "assisted reproduction" was decidedly low-tech: artificial insemination. When that was unsuccessful, the next step was in vitro fertilization (IVF) and embryo transfer. Unfortunately, IVF was unsuccessful as well, and shortly after their last IVF attempt ended in failure, they divorced. In Kass v. Kass the New York Court of Appeals had to decide what to do with all those "extra" embryos.
Because failure rates-and the physical, psychological, and economic costs of ovarian stimulation and egg harvesting-are so high, IVF specialists recommend the fertilization of many eggs and the cryopreservation of the "pre-zygotes" (the term used to describe embryos in the four- to eight-- cell stage) that result from the process. If pregnancy does not occur after transfer of several of these embryonic human beings into the fallopian tubes of the mother, the others serve as "extras" held in case of another attempt at full-term development. If pregnancy does occur, they are simply "extras" preserved in liquid nitrogen, with an uncertain fate and an even more unsettled legal status.
For Mr. Kass, the frozen "pre-zygotes" were property and their disposition was governed by the property settlement and "informed consent" forms signed by the couple as a precondition for their participation in the hospital's IVF program. Those forms stated: