Modern medicine redefines mom, dad

New technology pushing law into uncharted territory

May 21, 2007|By Chris Emery | Chris Emery,Sun reporter

Custody battles over frozen sperm and eggs. Children sired by dead men. Women giving birth to children who share none of their genes.

These are the realities of modern reproductive medicine, a rapidly evolving area of science that continues to challenge notions of parenthood.

It's murky legal ground, governed by few specific laws, with judges largely on their own to settle conflicts, and rulings that vary by court and location.

"It's really the Wild West," said Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania.

And the possibilities are numerous - about 40,000 children were born through assisted reproduction in 2004, the most recent year for which statistics are available.

In one case that illustrates the new frontier, Maryland's highest court ruled last week that the birth certificates of twins need not list their surrogate mother - or any woman, for that matter - as the legal mother. Caplan and other experts say that such situations are far from rare and likely to become more complex as new reproductive techniques emerge.

At least three women have reportedly used frozen sperm from deceased U.S. soldiers to conceive.

Kathleen Smith, a widow from Austin, Texas, gave birth to a son on July 14, 2006 - two years after her husband was killed by a sniper's bullet while serving in Iraq. Brian Smith, an Army tank commander, had banked sperm before he deployed and signed a document allowing her to decide whether to use it in the event of his death.

The soldier's father, William Smith of McKinney, Texas, said his daughter-in-law is applying for military benefits for her child. They are optimistic, he said, because the family was told that two other women who conceived using sperm from deceased soldiers had been granted benefits. "The precedent is there," he said.

A spokeswoman for the Department of Veterans Affairs said she was unable to confirm any such births or whether children conceived this way qualify for benefits based on their fathers' military service.

The banking of frozen eggs is less common than storing sperm. But the emerging practice is expected to become more widespread because it allows women to extend the reproductive window or provide eggs for others' later use.

"It may help women in their 30s not develop that panicked feeling," said Ruth Faden, executive director of the Johns Hopkins Berman Institute of Bioethics. She cautioned, however, that little is known about the long-term viability of frozen eggs or the conflicts that might ensue.

Like frozen sperm, used for decades in artificial insemination and more recently for in vitro fertilization, eggs can be stored for long periods. While eggs and sperm remain in cryogenic stasis, the lives of the donors may change - or end.

Disputes have arisen over ownership of and responsibility for frozen sperm.

In a New York case, a couple sought to take custody of their dead son's frozen sperm. Mark Speranza, 23, had banked his sperm six months before he died of cancer in 1998. When his parents learned of it, they sought to take possession of the samples so they could have a surrogate mother produce a grandchild for them.

Last fall, a judge ruled that the couple had no legal right to the sperm and ordered the tissue bank to destroy it.

In a similar case this year, an Israeli court ruled that sperm from Staff Sgt. Keivan Cohen, an Israeli soldier killed in the Gaza Strip in 2002, could be used to inseminate a woman he had never met.

The soldier's parents had the sample extracted from his body shortly after he was killed and found a woman who wished to use the sperm to become pregnant.

Experts said few federal or state laws govern the field of reproductive medicine, because legislators have remained reluctant to grapple with the politically touchy issues raised by the steady advance of technology.

"The challenge in this country is that, traditionally, decisions about reproduction have been left to the individual," said Gail H. Javitt, the law and policy director for the Genetics and Public Policy Center in Washington. "From a political perspective, you have to ask whether we would accept the government making those personal judgments for us."

Britain has a statute governing parental rights in cases that involve "assisted reproduction," the term used for advanced techniques that aid fertilization.

Seven states, not including Maryland, have adopted the Uniform Parentage Act, a model law that addresses such reproductive issues, but no such federal law exists.

Courts are thus often left to their own devices to rule on conflicts that can't be resolved in private.

"Courts are put in tough position," Javitt said, noting that the case decided Wednesday by the Maryland Court of Appeals demonstrated those difficulties.

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