Frozen Embryos Can Be Destroyed, Courts Rule
By Liz Townsend

Judges in two states have further eroded the rights of unborn children by deciding that tiny human embryos, once intended to be used for in vitro fertilization, can be destroyed even if one of the parents wants a chance to give them life.

The cases, in New York and New Jersey, both involve couples who created the embryos while married but later divorced without implanting all of them. Neither of the judges considered the humanity of the frozen embryos, but based the decision solely on contract law.

The couple in New Jersey, who were not identified in press reports, created their embryos in 1995 after three years of infertility, according to the Associated Press (AP). Before the embryos were used, the couple conceived a child naturally and had a daughter in March 1996.

However, the marriage failed and the couple filed for divorce in November 1996. The custody of the embryos was left for a judge to decide during the divorce proceedings. The wife wanted them destroyed and the husband wanted to use them with another woman or donate them to another couple, the AP reported.

Superior Court Family Judge Lee Laskin ruled on September 28, 1998, that "the couple had entered into an agreement to have a child, but that the agreement ended with their marriage."

Therefore, the embryos created during the marriage should be destroyed. Laskin made his ruling after legal arguments were made in one hearing in August, rejecting the husband's request that a full trial be held before the matter was decided.

"We're obviously disappointed," the husband's attorney Eric Spevak told reporters. "We believe this case has more to do with a father's rights to adopt his own embryos."

The embryos will not be destroyed until the husband's appeal of the ruling is heard.

In the New York case, Maureen Kass wanted to give her children - - five frozen embryos - - the chance to live. Her ex-husband, Steven, did not want to be responsible for children born years after their divorce, according to Newsday. Their five-year-long custody battle ended May 7, 1998, when the New York Court of Appeals ruled that the contract the Kasses signed when the embryos were conceived, requiring that if both parents did not agree to bring the embryos to term they would be donated to research and then destroyed, was valid.

"We're bitterly disappointed," Mrs. Kass's attorney, Vincent Stempel, told reporters after the decision. "Mrs. Kass wanted to have a child."

The judges quickly dismissed any claims that the frozen embryos are people as well as any right of Mrs. Kass to decide if her children should live: "disposition of these pre-zygotes does not implicate a woman's right of privacy or bodily integrity in the area of reproductive choice; nor are the pre-zygotes recognized as 'persons' for constitutional purposes," Chief Judge Judith Kaye wrote for a unanimous court.

Instead, the court relied solely on the contract signed by the Kasses in May 1993 when the embryos were conceived at John T. Mather Memorial Hospital in Port Jefferson, Long Island. Since the contract was in place, "we have no cause to decide whether the pre-zygotes are entitled to 'special respect,'" Judge Kaye wrote.

The Kasses were married in July 1988. Unable to conceive a child naturally or through artificial insemination, they began in March 1990 to try in vitro fertilization (IVF), according to the court decision.

The couple tried the IVF procedure nine times. Maureen Kass became pregnant twice, with one pregnancy ending in a miscarriage and one in an ectopic pregnancy, according to the court decision.

On May 20, 1993, more eggs were retrieved from Mrs. Kass, according to the court decision. Her sister, attempting to become a surrogate mother for the Kasses, received four of the embryos, but none survived. Five other embryos were placed in cryogenic storage, for possible use later.

However, the couple began divorce proceedings almost immediately after the surrogate pregnancy attempt failed. Although the divorce was final in May 1994, the dispute over the frozen embryos continued.

Mrs. Kass, now 40 years old, told the court that the embryos represent "her only chance for genetic motherhood." Her lawyer said that the commitment she showed in undergoing surgery to retrieve the eggs and create the embryos gives her a claim to them that her ex-husband, who only donated sperm, does not have. "She went through a lot of physical pain to have these eggs extracted," Stempel told Time magazine.

Mr. Kass, on the other hand, told Time magazine that he does not want to have children with his ex-wife. "I don't want my kids being brought up by her," Kass said. He added that it is hard to date other women when he has to explain to them, "I am divorced, but I have these frozen embryos hanging around."

Critics of the decision chided the court for refusing to address the central question of whether the embryos should be treated like objects or like human beings. "[T]he court said, in essence, unborn children are property, as properly subject to contract law as a set of dishes or the family bank account," wrote New York Post columnist Maggie Gallagher.

"Of course, what the court might have said, but didn't, is this: These are developing human beings who didn't ask to be created, certainly not in this unconventional and (to them) dangerous manner. The best interests of these developing children should be our highest priority."