Internet Editor's note: Appendix A material (Uniform Status of Children of Assisted Conception Act) and Appendix B material (Infertility (Medical Procedures) Act of 1985), which are published in the print edition of this Report, are not available in the Internet text.
This study report<1> furnishes background information and legislative developments in the area of reproductive technology. This report does not purport to cover all areas of the law where legislative action may be needed, but rather suggests to the Legislature the range of issues for consideration. The Michigan Law Revision Commission makes no recommendations in connection with this study report, but submits it to inform the Legislature and the citizens of Michigan on Michigan law dealing with this highly dynamic and complex field.
Part I contains a brief description of the various techniques and procedures encompassed by the phrase "reproductive technology." Part II lists and briefly describes the current and proposed legislation in Michigan and other states.
The phrase "reproductive technology" commonly is used to cover all practices that deal with artificial or "assisted" conception.<2> A helpful definition indicating the scope of these techniques is found in the Uniform Status of Children of Assisted Conception Act (SCACA). The SCACA was adopted by the National Conference of Commissioners on Uniform State Laws in 1988 and is reproduced in Appendix A to this report. As stated in its prefatory note, SCACA was drafted to "augment and clarify the rights of children born under the new [reproductive] technology as well as the rights of the parties to these arrangements ... [and] is not a surrogacy regulatory act." To date, Alternative B<3> of the SCACA has only been adopted by North Dakota (see N.D. Cent. Code §§ 14-18-01--14-18-07), and Alternative A<4> became effective in Virginia on July 1, 1993 (see Va. Code, art. 150, §§ 20-156--20-165). The SCACA, in § 1(1), defines "assisted conception" as:
[A] pregnancy resulting from any intervening medical technology, other than the pregnancy of a woman resulting from the insemination of her ovum using her husband's sperm, whether in vivo or in vitro, which completely or partially replaces sexual intercourse as the means of conception. Such intervening medical technology includes, but is not limited to, conventional medical and surgical treatment as well as non-coital reproductive technology such as artificial insemination by donor, cryopreservation of gametes and embryos, in vitro fertilization, uterine embryo lavage, embryo transfer, gamete intrafallopian tube transfer, and low tubal ovum transfer.
This provision basically defines "reproductive technology."<5> For
those not familiar with the various terms used, a brief introduction follows.
"Gametes" are the male and female reproductive cells, the sperm and the egg. The egg has different stages prior to fertilization, but for our purposes, the term "egg" can be used to include all stages of the female gamete prior to fertilization.<6>
"Fallopian tubes" are the tubes that carry the egg from the ovaries to the uterus. The "uterus" is the place where the egg, in a "natural" or coital reproductive process, is fertilized by the sperm and where the embryo and fetus develops.
"Pre-embryo" is the term commonly used to describe the fertilized egg until its implantation in the wall of the uterus, which occurs within the first fourteen days after fertilization. "Embryo" is the common designation used from the time of implantation until approximately eight weeks thereafter. This report uses the "embryo" designation for all stages up until 8 weeks after fertilization, except where the laws of the individual states distinguish the pre-embryo stage. After the eight weeks pass, up until birth, "fetus" becomes the appropriate terminology. See generally John A. Robertson, Children of Choice, supra note 1.
A. Artificial Insemination
Artificial insemination is perhaps the most common and well-known of the reproductive technologies. It is defined in Ohio Code § 3111.30(A) of the Ohio Parentage Act<7> as "the introduction of semen into the vagina, cervical canal, or uterus through instruments or other artificial means." This can be achieved by using sperm donated by a third-party donor (AID)<8> or by the husband/mate of the mother (AIH).<9>
Artificial insemination might be used when the husband/mate's sperm count is exceptionally low or there is a genetically transmittable disease on the male's side of the family. It can be combined with "cryopreservation," a process by which sperm donated for insemination can be frozen for later use. One advantage of cryopreservation is that it allows the artificial insemination to be timed in accordance with the onset of ovulation. Another advantage of cryopreservation is that the donor can be retested at a later date to see if he is infected by the AIDS virus since false positive tests for AIDS are common in the first few months after infection.<10>
B. In Vitro Fertilization
Unlike artificial insemination, in vitro fertilization (IVF) is a procedure which occurs outside the woman's body. IVF might be used when both the female and the male have infertility problems whereby a surplus embryo produced from gametes from two donors may be used. Or it may be used if the woman is unable to become pregnant through normal coital reproduction due to damage in her fallopian tubes. The eggs of a donor might be used if the woman has a genetically transmittable disease. Here too, cryopreservation can be used on the donated eggs so that a test for AIDS may be given to the donor after the recommended period of time.
To begin the IVF process, the ovaries of the biological mother/donor are stimulated artificially to release their eggs, which are then extracted from the woman's body by a process called laparoscopy, and fertilized by the sperm in a laboratory. The resulting embryos<11> are then transferred to the uterus of the "mother"<12> after a 2- or 3-day period. IVF may result in excess or "surplus" embryos being produced. These surplus embryos can be frozen by the cryopreservation process and thawed out at a later time if a "clinical pregnancy" fails to occur on the first transfer. The benefits of cryopreservation include reducing any risks that may occur by another laparoscopy. In addition, a couple may decide to donate the surplus embryos to another couple who is unable to produce the gametes necessary to initiate the process.
C. Gamete Intrafallopian Transfer
Gamete intrafallopian transfer (GIFT) is similar to IVF except that the eggs are fertilized inside the woman's body, or "in vivo." Following their removal from the ovaries, and during the same procedure, the eggs are combined with the sperm in a catheter and placed in the fallopian tubes for fertilization to occur.<13> This process is usually used by a couple when it is certain that there are no problems with the woman's fallopian tubes.
D. Zygote Intrafallopian Transfer
In zygote intrafallopian transfer (ZIFT) the egg is fertilized outside the body and is transferred directly into the fallopian tubes. This differs from IVF, as there the embryo is transferred into the uterus.
E. Uterine Lavage and Embryo Transfer
In this procedure the donated egg or the donated egg and sperm undergo fertilization within the donor's body and then, after "five or six days following insemination ... uterine lavage is performed ... to obtain the embryo for transfer into the body of the infertile woman.<14>
F. Surrogacy and Gestational Carriers
"Gestational mother" means the woman who gives birth to a child, but has no genetic relationship to that child -- i.e., the eggs used are not those of the woman.
"Surrogate" is defined by the SCACA in § 1(4) as "an adult woman who enters into an agreement to bear a child conceived through assisted conception for intended parents." A "traditional" surrogacy situation usually involves an infertile wife whose husband's sperm is artificially inseminated into a surrogate who has agreed to carry the fetus to term. The wife then adopts the child and the surrogate gives up all legal rights to that child.<15> Occasionally, the husband is also incapable of providing a gamete for fertilization and an anonymous sperm donor is used for the artificial insemination process.
The range of legal issues that are raised by the different reproductive technologies are constantly expanding as the scientific techniques and technologies change and develop. Part II provides an overview of the legislation or proposed legislation currently in existence in the United States, although Appendix B contains a reprint of the Victorian Infertility (Medical Procedures) Act of 1984 and the Infertility (Medical Services) Amendment Act of 1987. Considering the rapid changes occurring in the scientific field, these laws could become obsolete in a very short time.
A. Artificial Insemination
Many states have legislation concerning the rights and duties of the anonymous sperm donor and the paternity/maternity of the child born as a result of artificial insemination. Others have laws relating to testing of anonymous sperm for HIV virus. Both subjects are discussed here. Issues relating to health insurance coverage and to issues involving the Rules Against Perpetuities (affected by children who were "conceived-after-death" by frozen sperm or embryos) will be discussed in subsection B in connection with In Vitro Fertilization.
MCL § 333.2824(6), which addresses the issue of paternity and is found under the chapter on the Public Health Code, provides:
A child born to a married woman as a result of artificial insemination, with consent of her husband, is considered to be the legitimate child of the husband and wife.
Similarly, MCL § 700.111(2), which discusses legitimacy of children for probate purposes, states:
If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for all purposes of intestate succession. A child conceived following artificial insemination of a married woman with the consent of her husband shall be considered as their child for all purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence. If a man and a woman participated in a marriage ceremony in apparent compliance with the law before the birth of a child, even though the attempted marriage is void, the child is considered to be their child for all purposes of intestate succession.
The Michigan statutes are silent in three significant aspects: (1) they do not insist upon written consent by the husband, but assume consent, requiring clear and convincing evidence to override that presumption; (2) they make no mention of the situation in which the woman being artificially inseminated is not married; and (3) they make no mention of the rights or duties of the sperm donor. Other states have dealt with these issues in a somewhat different manner.
Arkansas Code § 9-10-201, under its chapter on paternity and subchapter on artificial insemination, has a special provision on the unmarried woman, which states:
(c)(1) A child born by means of artificial insemination to a woman who is unmarried at the time of the birth of the child shall be, for all legal purposes, the child of the woman giving birth, except in the case of a surrogate mother, in which event the child shall be that of:
(A) The biological father and the woman intended to be the mother if the biological father is married; or
(B) The biological father only if unmarried; or
(C) The woman intended to be the mother in cases of a surrogate mother when an anonymous donor's sperm was utilized for artificial insemination.
Unlike Michigan (see Part II.C. below), Arkansas accepts surrogacy as legal. Whether a provision as to the unmarried woman is needed in a state that prohibits surrogacy is debatable. The child born to a woman would be her child, both by reference to genetics and the birth itself, even though conceived through artificial insemination. The Michigan provisions apparently deal only with the married woman because only the status of paternity is deemed to be questionable without a statute.
The Arkansas statute's provision on paternity in the marriage situation also differs somewhat from the Michigan provision. It first provides that the husband will be deemed the father if he consented in writing. However, it then provides that the child shall be presumed to be the child of the woman giving birth and her husband, except in the case of a surrogate mother. How these provisions are reconciled is unclear. Arguably, Arkansas prefers that the consent be in writing, but then creates a presumption even if not in writing.
New Jersey Stat. Ann. § 9:17-44, found under its chapter on "bastardy proceedings," also provides for consent in writing as a standard procedure, but may be more rigorous in insisting on a writing:
(a) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband's consent shall be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, upon forms provided by the Department of Health, and file the husband's consent with the State Department of Health, where it shall be kept confidential and in a sealed file. However, the physician's failure to do so shall not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for compelling reasons, clearly and convincingly shown.
New Jersey Stat. Ann. § 9:17-44 also deals with the rights and duties of the non-spousal sperm donor. Subsection (b) provides:
(b) Unless the donor of semen and the woman have entered into a written contract to the contrary, the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the father of a child thereby conceived and shall have no rights or duties stemming from the conception of a child.
New Hampshire Rev. Stat. § 168-B:11, found in the chapter on surrogacy and artificial insemination, is another provision that speaks to the non-spousal sperm donor's duties. It states:
A sperm donor may be liable for support only if he signs an agreement with the other parties to that effect.
Texas Family Code § 12.03, located under the chapter on the parent-child relationship, also denies the paternity of the donor unless he is the woman's husband. It further requires that the husband give a written and acknowledged consent in order to establish the paternity. That section provides:
(a) If a husband consents to the artificial insemination of his wife, any resulting child is the child of both of them. The consent must be in writing and must be acknowledged.
(b) If a woman is artificially inseminated, the resulting child is not the child of the donor unless he is the husband.
Ohio, in its revised code on parentage and non-spousal artificial insemination,<16> also discusses both the paternity rights of the husband and the non-spousal sperm donor in § 3111.37. That section provides:
(A) If a married woman is the subject of a non-spousal artificial insemination and if her husband consented to the artificial insemination, the husband shall be treated in law and regarded as the natural father of a child conceived as a result of the artificial insemination, and a child so conceived shall be treated in law and regarded as the natural child of the husband. A presumption that arises under division (A)(1) or (2) of § 3111.03 of the Revised Code is conclusive with respect to this father and child relationship, and no action under §§ 3111.01-3111.19 of the Revised Code shall affect the relationship.
(B) If a woman is the subject of a non-spousal artificial insemination, the donor shall not be treated in law or regarded as the natural father of a child conceived as a result of the artificial insemination, and a child so conceived shall not be treated in law or regarded as the natural child of the donor. No action under §§ 3111.01-3111.19 of the Revised Code shall affect these consequences.
Subsection (A) of the Ohio provision requires no particular form of consent by the husband to establish parentage. However, the provision on artificial insemination requires that both the husband and the wife must consent, in writing, to non-spousal artificial insemination.
Section 3111.34 states:
The non-spousal artificial insemination of a married woman may occur only if both she and her husband sign a written consent to the artificial insemination as described in § 3111.35 of the Revised Code.
The above statutes suggest several possibilities for amendment of the Michigan statutes. These include some form of provision that encourages the husband's consent to be in writing, and a provision on the duties and rights of the non-spousal sperm donor.
Testing for HIV and Other Medical Condition
MCL § 333.16273, found in the Public Health Code, addresses the problem of testing for HIV when sperm is donated for artificial insemination purposes. That section provides, in part:
(1) A licensee, except a veterinarian licensed under this article, who provides artificial insemination services on an anonymous basis shall use only frozen sperm, and shall test each potential sperm donor for the presence in the donor of MV or an antibody to HIV. The donated sperm shall be frozen, stored, and quarantined for not less than 6 months. Before frozen sperm is used for artificial insemination, and not less than 6 months after the date of the donation, the licensee shall take a second blood sample from the donor and have that blood sample tested for HIV or an antibody to HIV. If at any time the test results are positive, the licensee shall not use the sperm of the donor for artificial insemination purposes.
MCL § 333.20179(l) similarly states, in part:
A health facility or agency licensed under this article that provides artificial insemination services on an anonymous basis shall use only frozen sperm, and shall test each potential sperm donor for the presence in the donor of HIV or an antibody to HIV.
Various states have similar provisions. However, they are not as extensive as Michigan's in requiring a six-month waiting period and a second test. See, e.g., Maryland Code § 18-334(e); Del. Code § 2801(b).
In addition to testing for HIV, some states require that the frozen sperm of a non-spousal donor can only be used if additional tests, including those for genetically transmitted diseases, are performed on the donor. Ohio Code § 3111.33 is illustrative. It provides:
(A) In a non-spousal artificial insemination, fresh or frozen semen may be used, provided that the requirements of division (B) of this section are satisfied.
(B)(1) A physician or person under the supervision and control of a physician may use fresh semen for purposes of a non-spousal artificial insemination, only if within one year prior to the supplying of the semen, a complete medical history of the donor, including, but not limited to, any available genetic history of the donor, was obtained by a physician, the donor had a physical examination by a physician, and the donor was tested for blood type and RH [h] factor.
(2) A physician or person under the supervision and control of a physician may use frozen semen for purposes of a non-spousal artificial insemination only if all the following apply:
(a) The requirements set forth in division (B)(1) of this section are satisfied;
(b) In conjunction with the supplying of the semen, the semen or blood of the donor was the subject of laboratory studies that the physician involved in the nonspousal artificial insemination considers appropriate. The laboratory studies may include, but are not limited to, venereal disease research laboratories, karotyping, GC culture, cytomegalo, hepatitis, kemzyme, Tay Sachs, sickle-cell, ureaplasma, HLTV-III, and chlamydia.
(C) The physician involved in the non-spousal artificial insemination determines that the results of the laboratory studies are acceptable results.
Caselaw developments in the area of tort liability for artificial insemination have not been rapid. One reported decision from the 6th Circuit, Striver v. Parker, 975 F.2d 261 (1992), held that medical personnel who performed an artificial insemination as part of a surrogacy contract were liable for negligent donor screening. In this connection, see Megan D. McIntyre, The Potential for Products Liability Actions When Artificial Insemination by An Anonymous Donor Produces Children with Genetic Defects, 98 Dickinson L. Rev. 519 (1994).
In 1993 the California court of appeals held that a decedent who had had his sperm frozen could bequeath it to his girlfriend as part of his will, over the objections of his children. Hecht v. Superior Court, 20 Cal. Rptr. 275 (Cal. App. 1993). See Jennifer L. Collins, Hecht v. Superior Court: Recognizing a Property Right in Reproductive Material, 33 Univ. Louisville J. Fam. L. 661 (1995).
B. In Vitro Fertilization
Since IVF is a much more far-reaching procedure than artificial insemination, it tends to present more issues. In its second report on Artificial Conception, the New South Wales Law Reform Commission, LRC 58 (1988) at 19 states:
It is not an established medical practice whose regulation is being updated. It is an entirely new treatment whose first success was recorded barely ten years ago. The law as it stands is barely equipped to deal with the issues it raises. IVF brings about human reproduction, and the attitudes of many people to it are influenced by strongly held moral, ethical and religious views concerning sexual behavior, family formation and the bearing and raising of children.
One area of legislation concerning IVF is health insurance coverage for the procedure itself. There is no current legislation in Michigan involving health insurance coverage for IVF or artificial insemination, but proposed House Bills 4708, 4709 and 4710, introduced in 1991 by Representative Bender, would require HMOs, health insurance companies, and Blue Cross/Blue Shield of Michigan to provide coverage.
Some states have already enacted laws regulating insurance coverage for IVF and other forms of infertility treatments. Arkansas Code Ann. § 23-85-137(a), found in the chapter on disability insurance regulations, provides that "[a]ll disability insurance companies doing business in this state shall include, as a covered expense, in vitro fertilization." Other states have similar insurance coverage provisions requiring coverage for IVF (Conn. Gen. Stat. Ann. § 38a-536; Haw. Rev. Stat. § 432:1-604; Ill. Ann. Stat. ch. 73, para. 968m; Md. Ins. Code Ann. art. 48A, § 47OW; and Tex. Ins. Code Ann. art. 3.51-6).
The California Health and Safety Code, § 1374.55, distinguishes IVF. It provides:
(a) On and after January 1, 1990, every health care service plan contract which is issued, amended, or renewed that covers hospital, medical, or surgical expenses on a group basis, where the plan is not a health maintenance organization as defined in § 1373.10, shall offer coverage for the treatment of infertility, except in vitro fertilization, under those terms and conditions as may be agreed upon between the group subscriber and the plan. Every plan shall communicate the availability of that coverage to all group contract holders and to all prospective group contract holders with whom they are negotiating.
(b) For purposes of this section, "infertility" means either (1) the presence of a demonstrated condition recognized by a licensed physician and surgeon as a cause of infertility, or (2) the inability to conceive a pregnancy or to carry a pregnancy to a live birth after a year or more of regular sexual relations without contraception. "Treatment for infertility" means procedures consistent with established medical practices in the treatment of infertility by licensed physicians and surgeons including, but not limited to, diagnosis, diagnostic tests, medication, surgery, and gamete intrafallopian transfer. "In vitro fertilization" means the laboratory medical procedures involving the actual in vitro fertilization process.
Consumer Protection Regulation
Another area for potential regulation concerns misleading claims that IVF clinics and doctors may make about their success rates with the procedure. Jean Eggen, in her article on reproductive technology (see footnote 13 supra), argues that although "the success of IVF worldwide could be characterized optimistically as in the range of twenty percent," some clinics, who themselves may have low success rates, "have adopted the worldwide figure in their promotional efforts." 25 Ga. L. Rev. at 649. She adds that patients who resort to IVF are those that are "particularly vulnerable to statistical manipulation" and that the highly technical nature of the procedure makes them more susceptible to being misled. Id. at 650.
Some would apparently go so far as to ban the procedure, though no state has done so. The New South Wales Law Reform Commission, in part 2 of its Artificial Conception Report, LRC 58 (July 1988) page 24, notes opponents who argue against the process as "built on the destruction of human life," "threatening the traditional family." They also note others who "criticize the process as one which makes women objects of scientific curiosity and subjects of scientific experimentation." Id. (citing M. O'Brien, "The Politics of Reproduction" (1984); R. Koval, "Women, Birth, and Power," 4 Australian Society 6 (1985)). Constitutional rights of privacy and the right of patients to have autonomy over their own medical care are issues that would necessarily be raised by prohibition, but not by full disclosure requirements.
Cryopreservation and Disposition of Embryos
A major issue presented by cryopreservation as it relates to IVF is what controls should be placed on the disposition of the unused frozen embryos that are not going to be transferred into a recipient immediately, or perhaps not at all. Christi D. Ahnen, the author of Disputes Over Frozen Embryos: Who Wins, Who Loses, and How Do We Decide?, 24 Creighton L. Rev. 1299, 1302 (1990), states:
Two divergent views exist regarding disposition of frozen embryos. Persons who believe that life begins at conception view the embryo as human, with the rights of personhood, and "believe that all viable embryos must be transferred to a uterus and given the opportunity to gestate. . . ." The more liberal view is that embryos should be transferred to a uterus whenever reasonably possible, but the discard of embryos and embryo research should be permitted in acceptable circumstances.
Some of the questions surrounding surplus embryos include: How are they to be disposed of? Are they "lives in being" for purposes of the Rule Against Perpetuities? Can they be used for research purposes, and who gets "control" of them in the event of a divorce or death of both gamete donors? These and other questions have been addressed by various laws in different states.
Research and Frozen Embryos
There are no Michigan laws concerning frozen embryos. However, Michigan laws do not allow research on live human embryos if it would jeopardize the life of the embryo. MCL § 333.2685(l), in the Public Health Code, provides:
A person shall not use a live human embryo, fetus, or neonate for nontherapeutic research if, in the best judgment of the person conducting the research, based upon the available knowledge or information at the approximate time of the research, the research substantially jeopardizes the life or health of the embryo, fetus, or neonate. Nontherapeutic research shall not in any case be performed on an embryo or fetus known by the person conducting the research to be the subject of a planned abortion being performed for any purpose other than to protect the life of the mother.
As noted by Gail D. Sillman, author of In Vitro Fertilization and Cryopreservation, 67 Mich. B.J. 601 (1988), Michigan laws fail to "specifically define the term embryo or fetus" and therefore this statute is "inadequate in its application to IVF." One question asked is whether a frozen embryo would be deemed "a live" embryo or just one having the potential for life, as many frozen embryos may not be viable and do not result in "clinical" pregnancies upon transfer to the gestational carrier. The critical provision on this issue, MCL. § 333.2687, states:
An embryo, fetus, or neonate is a live embryo, fetus, or neonate for purposes of §§ 2685 to 2691 if, in the best medical judgment of a physician, it shows evidence of life as determined by the same medical standards as are used in determining evidence of life in a spontaneously aborted embryo or fetus at approximately the same stage of gestational development.
Another issue is what is meant by the term "embryo"? The standard applied here is beyond the expertise of the authors of this memo. Sillman notes that Dorland's Medical Dictionary defines an embryo as a "developing organism ... from about two weeks after fertilization to the end of the seventh or eighth week, and a fetus as "the unborn offspring ... from seven or eight weeks after fertilization until birth." Frozen embryos are pre-embryos. Thus, Sillman concludes:
A scientist could, therefore, conduct an experiment on any fertilized egg (up to two weeks after fertilization) for any reason whatsoever -- which could include genetic manipulation . . . and not technically violate the Michigan statute. . . . A literal reading of the statute would also permit an IVF clinic to sell, transfer, distribute and give away a living, developing organism that has not yet reached the embryonic stage. The embryo research statute was clearly intended not only to preclude scientists from performing nontherapeutic research on any living human organism, but also to eliminate IVF clinics, practitioners or donors from selling, transferring, distributing or giving away frozen fertilized eggs. Accordingly, the statute needs to be revised to apply to the IVF context. It also needs to be further revised to differentiate between IVF as a treatment for infertility and IVF as a tool for research.
Should the statute apply to the frozen embryos, Sillman also sees problems. Initially, she notes that the statute does draw a worthwhile distinction:
The statute defines nontherapeutic research as "scientific or laboratory research, or other kind of experimentation or investigation not designed to improve the health of the research subject." Diagnostic, assessment, or treatment procedures which "determine the life or status or improve the health of the embryo, fetus, or neonate involved or the mother involved" are not prohibited by the statute. According to the above definitions an argument can be made that the clinical practice of IVF is not excluded by the statute because it is aimed at improving the health of both the infertile couple as well as the fertilized egg . . . .
However, she feels that the statute here does not go far enough:
While the statute may exempt IVF in a clinical context, certain research performed on frozen fertilized eggs would appear to be prohibited by the statute. For example, if a researcher were seeking a cure for a hereditary disease such as Huntington's or Tay Sachs, it would be permissible under the statute for the scientist to manipulate genes to effect a cure only if he or she thought it would not substantially jeopardize the life or health of the fertilized egg.
She also sees difficulty in allowing the researcher to make the final determination as to substantially jeopardizing the life or health of the fertilized egg. She suggests that there is need "for impartial and external restraints which are noticeably absent in the Michigan statute." She recommends that:
The embryo research statute authorize the creation of a state or local advisory research board, consisting of, for example, researchers, physicians, lawyers, ethicists and lay persons, who would be charged with the responsibility of reviewing and approving or rejecting all experiments involving research on fertilized eggs produced by IVF.
Cryopreservation simply was not a focus of the Michigan legislature when enacting the laws against research on live human embryos in 1978. Its major purpose apparently was to prevent abortions being done to harvest embryos for research. MCL § 333.2689 provides:
A person shall not perform or offer to perform an abortion where part or all of the consideration for the performance is that the embryo, or fetus, whether alive or dead, may be used for research or study.
MCL §333.2688(l) further states:
Research may not knowingly be performed upon a dead embryo, fetus, or neonate unless the consent of the mother has first been obtained.
Whether or not one would desire to follow the approach suggested by Sillman, she points to the need to focus on the special characteristics of the IVF process.
Louisiana legislation does deal directly with frozen embryos. It clearly bars development for research and, perhaps, also bars testing for genetic engineering purposes. Initially, it deems the frozen embryo to be a "human life," as La. Civ. Code § 123, found in the chapter on human embryos, provides:
An in vitro fertilized human ovum exists as a juridical person until such time as the in vitro fertilized ovum is implanted in the womb; or at any other time when rights attach to an unborn child in accordance with law.
La. Civ. Code § 122 includes the basic prohibition against research:
The use of a human ovum fertilized in vitro is solely for the support and contribution of the complete development of human in utero implantation. No in vitro fertilized human ovum will be farmed or cultured solely for research purposes or any other purposes. The sale of a human ovum, fertilized human ovum, or human embryo is expressly prohibited.
New Hampshire, on the other hand, clearly does allow research on frozen embryos with consent. N.H. Rev. Stat. § 168-B:15, found in the chapter on in vitro fertilization and pre-embryo transfer, provides:
I. No pre-embryo shall be maintained ex utero in the noncryopreserved state beyond 14 days post-fertilization development.
II. No pre-embryo that has been donated for use in research shall be transferred to a uterine cavity.
Other states have legislation restricting research on embryos and fetuses but, like Michigan, these statutes are not specifically geared toward cryopreserved embryos or else they are expressly enacted to prevent research on intentionally aborted fetuses. See, e.g., Mass. Ann. Laws ch. 112 § 12J; Mo. Rev. Stat. § 188.037; N.M. Stat. Ann. § 24-9A-1; Ark. Code Ann. § 20-17-802.
Federal regulations do not allow federal funding to be "expended for research involving human subjects," 45 C.F.R. § 46.122, and this includes "viable fetuses." A viable fetus is defined in that regulation as a fetus "being able, after either spontaneous or induced delivery, to survive (given the benefit of available medical therapy) to the point of independently maintaining heartbeat and respiration." 45 C.F.R. § 46.203(d). This would not include a frozen embryo.
Death or Divorce of the Parents/Owners of Frozen Embryos
Davis v. Davis, 1992 Tenn. Lexis 400 (Tenn. S. Ct. June 1, 1992), is the only case to date in the United States which concerns the disposition of the embryos upon a divorce of the two potential parents. This case involved a divorced woman who, along with her then ex-husband, had previously undergone IVF which resulted in surplus frozen embryos. She wanted control of the surplus embryos to implant them in her uterus in an attempt to become pregnant. The ex-husband objected. The Tennessee Supreme Court affirmed the Court of Appeals decision which stated that the embryos were not "persons" or "property" under the law but fell somewhere in between. Therefore, they do not enjoy protection as persons under federal or state law, but were entitled to "special respect because of their potential for human life." The court held that the contract made before undergoing the IVF was enforceable and therefore gave the decisionmaking authority as to the disposition of the embryos to both parties. Accordingly, a lower court decision, which had declared the embryos to be human beings and had held the contract unenforceable due to a "best interests of the child" determination, was reversed.
The Tennessee court noted that there was nothing in the contract before it that specified what should be done with unused embryos following cryopreservation, and that there was no current legislation in Tennessee governing the situation. Michigan also has no legislation on the subject. Thus, if it followed the Davis analysis, the contract would control (assuming that, in light of Davis, an effort will be made to include a disposition provision in future contracts relating to IVF). Of course, if the lower court position is followed, the "best interests," as determined by the court, would prevail. Presumably those best interests would be the path most likely to result in a successful implantation.
Louisiana does have legislation dealing with the disposition of cryopreserved embryos as a result of IVF. That state considers the frozen embryos to be "human beings," prohibits their destruction while frozen, and awards them the "best interest of the child" determination in disputes over disposition.
La. Civ. Code § 129 initially states:
A viable in vitro fertilized human ovum is a juridical person which shall not be intentionally destroyed by any natural or other juridical person or through the actions of any other such person. An in vitro fertilized human ovum that fails to develop further over a thirty-six hour period except when the embryo is in a state of cryopreservation, is considered non-viable and is not considered a juridical person.
La. Civ. Code § 131 then adds:
In disputes arising between any parties regarding the in vitro fertilized ovum, the judicial standard for resolving such disputes is to be in the best interest of the in vitro fertilized ovum.
Taken to its logical extreme, the Louisiana provisions produce the following results. The prospective parents have no legal responsibility to arrange for the implantation of the frozen embryo. However, even if that is their decision, the frozen embryo remains protected as long as it is viable, i.e., capable of successful implantation. Moreover, they must be made available for implanting to any others who want them, as that would be in their best interest (as in the case of an abandoned child). See also York v. Jones, 717 F. Supp. 421 (E.D. Pa. 1989) (married couple had property interest in frozen embryo sufficient to order its delivery from Virginia to California for in vitro fertilization procedure).
Frozen Embryos and the Rule Against Perpetuities
Article IX, Part 1, § 901 of the Uniform Act on Intestacy, Wills, and Donative Transfers, covers the Statutory Rule Against Perpetuities. This Act was adopted in Michigan in 1988. See MCL. § 554.71-77, subsection (d). MCL. § 554.72(4) provides:
[Possibility of Post-death Child Disregarded.] In determining whether a non-vested property interest or a power of appointment is valid under subsection (1)(a), (2)(a), or (3)(a), the possibility that a child will be born to an individual after the individual's death is disregarded.
The commentary to that section states that when, for example, a party leaves sperm in a sperm bank and his wife, or another, uses it to become pregnant after his death, "[a]s to the legal status of conceived-after-death children, that question has not yet been resolved." The commentary goes on to note that "[w]ithout trying to predict how that question will be resolved in the future, the best way to handle the problem from the perpetuity perspective is the rule in subsection (d) requiring the possibility of post-death children to be disregarded." Although not explicitly stated, this would appear to apply to frozen surplus embryos also.
Frozen Embryos and Inheritance and Maternity/Paternity
As mentioned earlier in Part II(A) of this report, MCL § 700.111(2) states:
If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for all purposes of intestate succession. A child conceived following artificial insemination of a married woman with the consent of her husband shall be considered as their child for all purposes of intestate succession.
This provision raises a series of questions as to gestational mothers and even a mother implanted with her own eggs fertilized through the IVF process. Under the first sentence, where the mother is married and the child is born during the marriage, the child is that of the mother and her husband. This would present difficulties were surrogates allowed, but Michigan rejects the surrogate contract, as discussed infra. Where the mother is single and the egg is hers, the situation should not differ from that of the artificially inseminated single mother. See the discussion in Part II.A. above. Where the mother is a gestational mother only, the reference to "birth" in the Michigan provision would suggest that this should be the controlling factor, not genetic link.
The issue becomes more complicated as to paternity in the case where there was a marriage, but the child was born after the marriage was terminated. There would be no "conception" by implanting, but arguably implanting would be similar to artificial insemination, so that the husband's consent would be sufficient. What if the husband should be deceased before the implant takes place? Could the fertilization by the IVF process with the intent of a later implantation be considered the parallel of artificial insemination so that consent at that point would be enough? Surely here consent should not be presumed, as § 700.111(2) also provides. See Part II.A. above.<17>
Following its other regulations on cryopreservation, La. Civ. Code § 133 seeks to deal with another issue not considered in Michigan: the status of persons who are the source of gametes. The issue here is similar to that discussed with respect to artificial insemination. The Louisiana provision states:
As a juridical person, the embryo or child born as a result of in vitro fertilization and in vitro fertilized ovum donation to another couple does not retain its inheritance rights from the in vitro fertilization parents.
MCL § 722.853(i) of the Surrogate Parenting Act provides:
"Surrogate parentage contract" means a contract, agreement, or arrangement in which a female agrees to conceive a child through natural or artificial insemination, or in which a female agrees to surrogate gestation, and to voluntarily relinquish her parental or custodial rights to the child. It is presumed that a contract, agreement, or arrangement in which a female agrees to conceive a child through natural or artificial insemination by a person other than her husband, or in which a female agrees to surrogate gestation, includes a provision, whether or not express, that the female will relinquish her parental or custodial rights to the child.
Such contracts for surrogacy are illegal in Michigan, as provided in MCL § 722.855: "A surrogate parentage contract is void and unenforceable as contrary to public policy." In adopting this provision, the Michigan legislature rejected the intermediate position of only disallowing contracts for gain or profit. See, e.g., Utah Code Ann. § 76-7-204; Wash. Rev. Code Ann. § 26.26.240. As previously noted in Part I, the SCACA Alternative B more closely resembles the Michigan law. It provides in § 5 for the illegality of the agreement. It also states that the surrogate is the mother of the child. See Appendix A.
Another potential area for legislation is the possibility of a tort action against a gestational surrogate mother for injuries to the fetus. In her article, Adventures in Babysitting: Gestational Surrogate Mother Tort Liability, 41 Duke L.J. 661, Karen A. Bussel discusses some of the liability situations that could arise whether or not surrogate contracts are legal. To illustrate, she discusses the possibility that a gestational surrogate mother (who has no genetic relationship to the fetus) may take medication during the pregnancy that causes harm to the child. She also discusses a scenario where a cesarean section is needed for the health of the child but it would put the gestational surrogate mother's life at risk.
Although there is no case law on these particular situations yet, the author cites a case which involved a natural mother who took doctor prescribed tetracycline during her pregnancy. This resulted in her child developing discolored teeth. Grodin v. Grodin, 301 N.W.2d 869 (Mich. Ct. App. 1980). The court concluded that the child did have a cause of action for damages against her mother and reversed a lower court's previous dismissal.
<1> This report was prepared by Andrea Crowe, and revised by Professor Jerry Israel, of the University of Michigan Law School.
<2>See generally John A. Robertson, Children of Choice: Freedom and the New Reproductive Technologies (1994); Janet L. Dolgin, The Law Debates the Family: Reproductive Information, 7 Yale J. L. & Feminism 37 (1995).
<3>Alternative B of the SCACA is designed for those jurisdictions that wish to provide that "[a]n agreement in which a woman agrees to become a surrogate or to relinquish her rights and duties as parent of a child conceived through assisted conception is void." See Appendix A infra.
<4>Alternative A allows for surrogacy contracts which meet conditions outlined in the Act.
<5>Although some of the literature distinguishes the terms "reproductive technology" and "advanced reproductive technology," this report will use the former as a general designation. See Jean Macciaroli Eggen, The "Orwellian Nightmare" Reconsidered: A Proposed Regulatory Framework For The Advanced Reproductive Technologies, 25 Ga. L. Rev. 625, 629 n. 6 (1991) (where the author adopts the term "advanced reproductive technology" as defined by the American Fertility Society, encompassing those treatments which include the laboratory handling of human oocytes (eggs) and/or embryos. Treatments such as artificial insemination would not be deemed "advanced" under this definition, as there is no laboratory handling of eggs or embryos.).
<6>Terms used for the various stages of the egg prior to fertilization such as oocyte (an egg that has not yet undergone maturation) and ovum (a mature egg) will not be used.
<7>The Ohio Parentage Act is adopted from the Uniform Parentage Act, which has so far been adopted by 18 states, but not in Michigan. See 9B ULA 287.
<8>AID is the acronym for artificial insemination by donor.
<9>Acronym for artificial insemination by husband.
<10>Legislation on cryopreservation of sperm will be discussed in Part II.
<11>More than one embryo is transferred into the uterus to increase the chances of a "clinical pregnancy." A clinical pregnancy is "[a] pregnancy confirmed by an increasing level of HCGT and the presence of a gestational sac detected by ultrasound." American Fertility Society, IVF & GIFT: A Patient's Guide To Assisted Reproductive Technology 15.
<12>"Mother" is used in this report to denote the expected "legal" mother after birth, either biological or adopted. "Gestational carrier" will be used to denote the female, not necessarily the biological mother, carrying the embryo/fetus up to birth. This will be discussed further in the next subsection.
<13>One important issue which will not be covered in this report is the controversy surrounding the question of just when fertilization or conception actually occurs.
<14>Jean Macciaroli Eggen, The "Orwellian Nightmare" Reconsidered: A Proposed Regulatory Framework For The Advanced Reproductive Technologies, 25 Ga. L. Rev. 625, 629 at 642 (1991).
<15>Dorean M. Koenig, The Regulation of Modern Biomedical Techniques, 38 DePaul L. Rev. 1013, 1036 (1989).
<16>This chapter clearly states, in § 3111.31, that it only "deal[s] with non-spousal artificial insemination for the purpose of impregnating a woman so that she can bear a child that she intends to raise as her child. These sections do not deal with the artificial insemination of a wife with the semen of her husband or with surrogate motherhood."
<17>See generally Emily McAllister, Defining the Parent-Child
Relationship in an Age of Reproductive Technology: Implications for
Inheritance, 29 Real Prop. Prob. & Tr. J. 55 (1994).
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