The Entwined Destinies of Roe v. Wade
and Assisted Reproductive Technology

By Phyllis Griffin Epps

A recent United States Supreme Court decision has heightened the ongoing debate over whether a woman should be able to terminate her pregnancy in a legal and medically safe manner. The decision, Stenberg v. Carhart ("Carhart"), is notable not only for its content but also for the slimness of the majority and a general lack of consensus on the subject of abortion within the Court. Five justices supported the decision, which invalidated a Nebraska statute outlawing the use of the dilation and extraction or "partial birth abortion" procedure; four justices did not. Many have analyzed Carhart for its implications on access to abortion in the future. The next person appointed to the Supreme Court, or else a change in the opinion of a current justice, could mean radical change in the legality of abortion procedures. Yet the arguments for overturning the decisions that establish a womanís right to terminate a pregnancy could have equally significant implications for those who seek the benefits of assisted reproductive technologies like in vitro fertilization as well.

The Supreme Court founded its decision in Carhart upon principles first outlined in Roe v. Wade. The Court recognized the right to terminate a pregnancy as implicit within a personís right to privacy under the Fourteenth Amendment to the United States Constitution. The Court also concluded that a fetus is not a person within the meaning of the Fourteenth Amendment. Prior to viability of the fetus, the interests of the fetus can not supersede the right to bodily integrity of the woman. Some would overturn Roe for reasons that range from legal technicalities to moral repugnance. Many who disagree with the holding believe that, from the moment of conception, the fetus is a legal "person" entitled to legal protections from injury. The triumph of this position would lead to additional, perhaps absolute, restrictions on access to abortion.

Such a position might also affect the deliberate creation and manipulation of embryos existing outside the body is less clear. The world of assisted reproductive technology has changed since Roe v. Wade. In vitro fertilization ("IVF"), introduced in the late 1970ís, has challenged the notion of a "person" as a traditional and legal concept. In IVF, eggs are retrieved from a womanís ovaries and fertilized with sperm in a laboratory environment. The embryos that result are transferred into the womanís uterus in hopes that at least one will implant in the uterus and develop until birth. A couple undergoing IVF may yield more eggs and, consequently, more embryos than may be safely transferred into the womanís uterus. The fate of the embryos that remain after efforts to become pregnant are ceased is a source of great debate in bioethics and law.
Disputes over the custody of frozen embryos have been decided in state courts as part of divorce and other family law proceedings.

Current options include donation for transfer into another woman, donation to a laboratory for research, destruction, or cryopreservation (freezing). Recent changes allowing the use of human embryonic stem cells in research have given new meaning to the option to donate embryos for research. No longer limited to the development of reproductive technologies, research may now include efforts to understand Parkinsonís disease, Alzheimerís disease, lupus, and other diseases.

As with abortion, early attempts to regulate IVF centered on the actions and role of the physician. In the late 1970ís, the Illinois legislature adopted a statute that restricted IVF by making a physician who fertilizes a womanís egg outside of her body the custodian of the offspring for the purposes of an 1877 child abuse act. A later version of the statute allowed IVF but barred research on embryos. The statute was struck down years later in Lifchez v. Hartigan. In that case, a federal court concluded that the Illinois statute improperly interfered with the right to privacy in reproductive decision-making. Specifically, the court found that the right to abort a fetus included the right to undergo the procedures necessary to make the decision whether to abort.

The Lifchez v. Hartigan decision is typical of legal struggles to determine and balance the interests of embryos existing outside of the body in that the decision is based on the rights that currently entitle a pregnant woman to abort a fetus. A revolution in the interpretation of the rights and liberties associated with bodily privacy and integrity, while borne of debates regarding the destruction of life, may well alter current methods of enabling life. How will elevation of the rights of a fetus affect the practice of reproductive medicine? Will physicians be subject to legal limits in the number of eggs that may be fertilized? Will women be forced to receive all of the embryos that result from fertilization attempts? Will women unable to do so be limited to donating the remaining embryos for "adoption" by others? The debate is academic right now, but those who predict the death of Roe would do well to consider the full range of questions that may arise.

09/06/00