High court turns aside appeal over frozen fertilized eggs Control to remain with donors, states

February 23, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- A long legal drama over the fate of seven fertilized human eggs neared a final curtain yesterday as the Supreme Court turned aside a plea to give them a full right to life.

A Florida woman, who says she wants to become a mother through the development of those eggs over the objection of her former husband, failed to get a hearing before the justices. Her ex-husband, the sperm donor, wants the frozen "pre-embryos" destroyed and now may be able to have that done.

As a result of the court's action yesterday, control over eggs involved in thousands of laboratory dish experiments across the nation will be left to the donors or, if they disagree, to the varying laws of the states.

The court, returning after more than a month's recess, bypassed that dispute and several others of major significance, including a plea by the federal government to be spared the duty of ordering prompt and drastic measures to clean up the United State's dirtiest air: in the Los Angeles area.

But the justices did agree to step into a nationwide controversy over thousands of claims of on-the-job bias by women and minority workers.

The key issue in the cases from Texas and Ohio is whether the sweeping protections adopted by Congress two years ago apply to cases still in court when that law went into effect; lower courts are split on that.

In addition, the court said it will decide in a South Carolina case whether states must reimburse parents for private school tuition when their disabled child cannot get in public schools the help that the parents want.

Maryland joined other states in urging the court to deny tuition reimbursement in that situation.

Final decisions in those new cases are expected sometime next year.

The fertilized human eggs case had gone to the court after a series of lower court rulings in Tennessee, raising new controversy at each stage.

A childless couple produced the fertilized eggs in hopes of becoming parents. Seven eggs remain in a freezer in a fertility laboratory; they may survive in a frozen state for up to a decade. When the couple's marriage collapsed, they were divorced, with the fate of the eggs left unsettled legally.

The state Supreme Court ruled last June that the eggs are not "persons," but are not mere human tissue, either, and thus deserve some legal protection.

But it decided that when the donors of such eggs cannot agree on whether to have them implanted, the donor who objects to becoming a parent generally should have the say. In this case, the former husband, Junior Lewis Davis of Marysville, Tenn., opposes implantation of any of the eggs.

His former wife, Mary Sue Davis Stowe, now living in Florida, wanted the state courts to give her ownership so she could donate the eggs for implantation in another woman's body, so that the eggs "could grow up in a normal family."

The state court ruled that donation of the eggs for research would be allowed, but only if the two donors agreed. Without such an agreement, it said, they are to be destroyed, as the husband wishes.

Mrs. Stowe told the U.S. Supreme Court in a letter recently that she now wanted "to implant the embryos [in] myself so my children will have a chance at life."

She was represented in her final appeal by a Hagerstown lawyer, Rudolph Martin Palmer, Jr., who has been active in several cases in the state seeking to prevent abortions. Mr. Palmer's office referred calls yesterday to another attorney in the case, who could not be reached.

Although lawyers for Mr. Davis said yesterday that they were pleased the court had passed up the case, they added they were not convinced that Mrs. Stowe would not attempt other legal maneuvers before the pre-embryos actually are destroyed.

The justices gave no explanation for turning down her appeal.

Neither did they explain when they declined to hear an appeal in an Oklahoma case testing the scope of federal legal protection for infants born with defects. A lower court had ruled, in a case involving children born with a usually fatal defect, spina bifida, that the 1973 federal law banning discrimination against the handicapped does not apply to medical treatment of infants born with grave deformities.

In another decision to deny a review, the court refused without comment to second-guess a lower court order that the Environmental Protection Agency must come up soon with a plan to make the air around Los Angeles clean enough to meet national standards -- an order that EPA said may mean it will have to impose gasoline rationing and no-drive days.

And the court left intact a lower court ruling forcing the food company, Kraft Inc., to stop making exaggerated claims about the health value of its single-wrapped cheese slices, and any of its other cheese products.

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