Reproduction and consent

September 22, 1999

Here is an excerpt of an editorial from the Chicago Tribune, which was published Thursday.

IT OFTEN appears that technology is advancing faster than the ability of human beings to cope with it. The latest illustration comes from a suburban Chicago divorce battle over the fate of two frozen embryos.

The wife, Margaret Hale, wants them implanted in her womb to give them "a shot at life," in her words. Her estranged husband, Todd Ginestra, who filed for divorce in July, prefers to destroy them.

He has gotten a temporary restraining order barring Highland Park Hospital, which has custody of the embryos, from implanting the fertilized eggs.

Human error may be the only reason the embryos still exist. They were the product of in vitro fertilization, which the couple tried in the last months of their marriage. Five eggs were fertilized, but only three were implanted in an unsuccessful attempt to produce a baby.

Mr. Ginestra and Ms. Hale signed a contract calling for freezing unused embryos -- but the contract includes the notation, "Don't want freezing at this time," initialed by both.

Somehow, though, the hospital froze the two that were left. Even without the injunction, hospital officials say they don't allow implantation unless both partners consent.

It's a painful and novel dilemma. But the case doesn't really demand the wisdom of Solomon. Ms. Hale says she never agreed to destroy the embryos, only to freeze them.

Unfortunately for her, her husband never agreed to have them implanted. A decision to freeze them -- even if both Ms. Hale and Mr. Ginestra had agreed to that, which apparently they didn't -- is not a decision to let them be implanted.

It's a decision not to cross that bridge until the spouses come to it. Now that they've come to it, only one wants to cross, and that's not enough. Anti-abortion groups may regard the embryos as fully human, and thus entitled not to be destroyed. But the law and the U.S. Constitution don't grant that status even to highly developed fetuses, much less unimplanted zygotes. And no one could force Ms. Hale to accept implantation if Mr. Ginestra wanted children and she didn't.

Given that, it's hard to see how a court could justify forcing Mr. Ginestra to father a child over his objections. In the old days, a man and a woman having sex were implicitly accepting the possibility that offspring would result.

Technology has complicated things considerably. But even today, the consent of both partners should be required for reproduction.

Pub Date: 9/22/99

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