Constitutional Implications of in Vitro Fertilization Procedures

By Cucci, Nicole L. | St. John's Law Review, Spring 1998 | Go to article overview

Constitutional Implications of in Vitro Fertilization Procedures


Cucci, Nicole L., St. John's Law Review


I knew that instant that we had reached our goal: the early stages of human life were all there in our culture fluids, just as we wanted. . . and even as I gazed down at those embryos, wondering what to do with them, there was no doubt in my mind that the whole field was now wide open.

-Robert Edwards, British physiologist, upon witnessing his first in vitro fertilization.

Having children is considered by many to be the greatest achievement in a person's life. Unfortunately, statistics show that in the United States one in eight married couples suffer from infertility.1 Traditionally, these couples were afforded two options: either choose to remain childless, or to adopt.2 On July 25, 1978, the birth of Louise Brown in England added one more option and gave new hope to infertile couples worldwide.3

Louise was "conceived" in a sterile laboratory with neither her mother nor her father present. This was the first child conceived through the process of in vitro fertilization ("IVF"), with her life beginning in a petri dish rather than in her mother's body.4 With the advent of IVF, infertile couples were now afforded the ability to conceive, gestate and give birth to biologically related offspring.5 Louise's birth marked a turning point in the "technological reproductive revolution,"6 which began over a decade earlier when the development of the birth control pill made sexual intercourse without procreation possible.7 IVF, along with other assisted reproductive procedures, has paralleled this continuum by effectively making procreation without sexual intercourse possible.8 As a result of this breakthrough, "the decision to have or not have children is. . . no longer a matter of God or nature, but has been made subject to human will and technical expertise."9

Recent advances in reproductive technologies have created ways to achieve parenthood for a variety of people whose efforts heretofore had been unsuccessful. Such advances have also created a great deal of controversy concerning the moral, ethical, and legal implications which surround the use of these procedures.10 As reliance on IVF becomes more widespread and acceptable, debates focus on its practical uses and the many scientific advances which IVF makes possible. Two such procedures, embryo cryopreservation and embryo surrogacy, have become the subject of much controversy.11 There are two divergent views regarding these medical advances: those anxious for expansions on the range of procreative opportunities available to the infertile applaued the procedures 12 and those who condemn them for perverting the sanctity of nature, human life, and the procreative process.13 At the heart of this controversy lies the issue of whether the established right to procreate coitally should extend to encompass a fundamental right to noncoital procreation. This issue, although mentioned tangentially in cases regarding IVF procedures,14 has not been explicitly dealt with by any court.

As the combination of IVF and cryopreservation allow for the embryo to exist outside of the womb, lower courts have had to address issues concerning the rights of the various parties involved in the IVF process. These courts have considered which parties' rights prevail in the context of parental disagreement over the disposition of the embryos, whether there exists any individual rights of the embryo, and the legality of enforcing surrogacy contracts.15

This Note examines the traditional constitutional basis for procreative freedom and discusses various arguments for the extension of this right to noncoital reproduction. Part I briefly introduces the medical process for IVF. Part II overviews the historical basis for the rights of privacy and procreation, and argues that these rights should be extended to noncoital reproduction. Part III of this Note examines the legal status accorded to the embryo arising from the utilization of cryopreservation, and the conflicts arising among the various parties involved in IVF procedures. …

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