Crazy making: embryos and gestational mothers.

George J. Annas is Utley Professor of Health Law, and director of the Law, Medicine and Ethics Program, Boston University Schools of Medicine and Public Health. The new reproductive technologies, especially in vitro fertilization (IVF) and embryo transfer (ET) continue to challenge our imaginations and our courts. Do we need new laws to deal with this technology, and if so, what should they be? Two questions have recently been dealt with by courts, with varying degrees of success: Should individuals be forced to agree on the disposition of embryos created from their gametes? And when motherhood itself is "split" between genetics and gestation, should genes, contracts, or biology alone determine the status of "mother" and child? The Case of the Leftover Embryos: The first case involved the status of seven frozen embryos, produced during an IVF procedure, whose custody was contested in a divorce action, Davis v. Davis.[1] Mary Sue Davis wanted the embryos implanted in her so she could have a child; junior Davis wanted them to continue in their frozen state. The trial judge ruled that the embryos were children, and awarded custody to Mrs. Davis. This "crazy-making" result has now been reversed by an appellate court that sensibly observed that even though embryos have been "accorded more respect than mere human cells because of their burgeoning potential for life ... even after viability they are not given legal status equivalent to that of a person already born." The court ruled that the couple "shared an interest in the seven fertilized ova," and concluded that they should be given Joint control ... with equal voice over their disposition."[2] In other words, the genetic contributors, not the court or anyone else, will decide what to do with the embryos. If they fail to agree, the embryos will remain frozen. This nondecision strikes me as a reasonable one, although it challenges us to give content to the phrase "worthy of respect," as in "human embryos are worthy of respect." Embryos are neither children nor furniture, but have a unique, "exotic" status that demands unique rules. The gene-based "solution" is probably as well as we can do for now. But should the genetic contributors get to make all the decisions even after the embryo becomes a baby by virtue of being nurtured in a "surrogate" mother's womb? The Anna Johnson Case: The answer to this question involves the status of the embryo gestator, the woman we used to simply call "mother." It was the central issue in a California case in which Crispina and Mark Calvert hired Anna Johnson, a young, single, black nurse to gestate an embryo composed of their egg and sperm and to give the resulting child to them for a fee of $10,000. Mrs. Calvert was unable to bear a child because of a hysterectomy. Near the end of Anna Johnson's pregnancy, she sought to retain custody of the child. Genetic testing confirmed that the child, Christopher, born 19 September 1990, had no genetic relationship to Ms. Johnson. Following a hearing, Judge Richard N. Parslow, Jr., rendered an oral opinion from the bench, concluding that Crispina alone should be considered Christopher's mother: Anna Johnson is the gestational carrier of the child, a host in a sense .... she and the child are genetic hereditary strangers .... Anna's relationship to the child is analogous to that of a foster parent providing care, protection, and nurture during the period of time that the natural mother, Crispina Calvert, was unable to care for the child.[3] The judge bolstered this opinion by mentioning twin studies that showed that genetics was more important than environment, by finding that the contract was valid, and by concluding that giving the child exclusively to the Calverts was in the best interests of the child. As to the contract, the judge said that the "relinquishment" provision was "enforceable by... specific performance, arguably even by habeas corpus, if necessary. …