Academic journal article Albany Law Review

Procreative Rights in Assisted Reproductive Technology: Why the Angst?

Academic journal article Albany Law Review

Procreative Rights in Assisted Reproductive Technology: Why the Angst?

Article excerpt

The prevalence of infertility in the United States has been widely reported.(1) While medicine is now able to offer a variety of treatments to alleviate the suffering that infertility causes, the legal community is still grappling with the "mind-numbing ethical and legal questions" that science has left in its wake.(2)

Infertility can be caused by any number of risk factors whether related to medical conditions,(3) environmental factors,(4) or a host of other conditions. In 1978, five years after the landmark decision of Roe v. Wade,(5) the first baby was conceived in a test-tube.(6) In the twenty years since in vitro fertilization (IVF) has been used to assist infertile persons, more than 35,000 babies have been born with this technique in the United States alone.(7) Surprisingly, there are no federal laws in this country that specifically regulate the creation of children with technological assistance.(8) Moreover, like the overwhelming majority of other states, New York also has not legislated directly in this area.(9)

Despite the ever-growing number of couples availing themselves of the scientific advances to conquer infertility, the law itself has lagged far behind medicine in defining the respective rights and constitutional parameters of participating in the in vitro process. Whether or not the "slow[] and cautious[]" evolution of the law is beneficial while "science races ahead"(10) is open to debate. At the time that Kass v. Kass(11) was argued before the New York Court of Appeals in March 1998, there was only one case that set out an analytical framework in an attempt to resolve disputes between divorcing couples regarding the disposition of frozen pre-zygotes.(12)

Rather than addressing the complete panoply of legal arguments available to advocate for or against the implantation or destruction of pre-zygotes,(13) this Article will instead focus upon the legal necessity of according the pre-zygotes a distinct legal classification separate from each of the gamete providers when attempting to resolve these disputes.

At the outset, some essential biological discussion is warranted. Conception or fertilization of an egg takes place after a "single spermatozoon enters the egg and the twenty-four chromosomes of each gamete fuse into a single cell of forty-eight chromosomes."(14) As a result, the cell now contains "a new and unique genome beginning a new generation."(15) At this stage, "the fertilized egg or preembryo is not yet individual, as only at implantation can a single new individual be identified."(16) "During the next three days the one-celled zygote divides several times to become an undifferentiated aggregate of two, four, six, or eight cells. When growth proceeds beyond sixteen cells, further developmental stages--the morula and then blastocyst--can be discerned."(17) "The blastocyst stage marks the developing capability to interact with maternal cells of the uterine lining, which is essential for implantation and later development to occur."(18) "In IVF programs the embryo will be transferred to a uterus when it reaches the four-, six-, or eight-cell stage, some forty-eight to seventy-two hours after conception. It is also at this stage that the embryo would be cryopreserved for later use."(19) Cryopreservation is a process whereby pre-zygotes, which are not transferred to the uterus, can be preserved.(20) Freezing the pre-zygotes in liquid nitrogen at sub-zero temperatures preserves the pre-zygote for later implantation.(21)

In 1998, the New York Court of Appeals addressed a matter of first impression concerning a dispute between a divorced couple to determine who had dispositional authority over the fate of five cryopreserved pre-zygotes formed by them during their marriage.(22) As this case proceeded through the New York State judicial system for five years with little statutory or other precedent to guide the courts, each justice grappled to find a solution to this unique case. …

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