Quickening Debate over Life on Ice

By Claudia Wallis

Do orphaned embryos have legal rights?

Sitting in a stainless-steel vat of liquid nitrogen at Queen Victoria Medical Center in Melbourne, chilled to a crisp--320DEG F, are 200 glass tubes, each holding a microscopic embryo. Just two to eight cells in size, they are babies in waiting, life on ice, kept for possible use by participants in the hospital's in-vitro fertilization (IVF) program. Last week hospital officials were stunned to learn that two of their charges could be heirs to a million-dollar fortune. The news set armchair ethicists around the world abuzz and forced Australian policymakers to ponder an area of the law that is indeed embryonic.

The unsettled estate--and the frozen assets--was that of Mario and Elsa Rios, a Los Angeles couple who made a fortune in real estate. In 1978, after Elsa's ten-year-old daughter by a previous marriage accidentally shot herself, the disconsolate couple sought to have another child. Unable to conceive by natural means, they turned, in 1981, to Melbourne's pioneering IVF program. Because Rios, then 54, was infertile, doctors used sperm from an anonymous donor to fertilize a number of eggs taken from his 37-year-old wife. Several were implanted, and two spares were frozen for use in case the pregnancy failed. As it happened, Elsa Rios miscarried, but she decided to postpone any further attempts until she felt "emotionally ready."

In April 1983, the couple died in a plane crash in Chile, leaving no wills. Under California law, Michael Rios, Mario's son by an earlier marriage, is entitled to his father's share of the estate. Elsa's share goes to her 65-year-old mother. The discovery of the embryos has, however, raised a number of questions. Do they, for example, have any rights of inheritance? To whom do they belong, and who has jurisdiction over their fate? Most basic of all, do they have a right to life?

This last question in particular has created a furor. Protestant churches have argued that the eggs should not be artificially maintained, but thawed and allowed to die naturally. Australian right-to-life groups, the Roman Catholic Church and some Orthodox Jewish leaders have protested that this would violate the sanctity of life. Instead, they believe the cells should be implanted in volunteer surrogate mothers.

That idea is fraught with problems, not the least of which are medical. According to Dr. Carl Wood, head of Queen Victoria's IVF unit, freezing techniques used in 1981 were rudimentary, and the Rios embryos are probably no longer viable. Moreover, many legal experts say that once the embryos are implanted, they lose any semblance of a claim to the Rios estate. Says Victoria Law Institute Spokesman Chris Wray: "A donor embryo does not belong to the donors of the genetic material but to the parents to whom the child is ultimately born."

"The whole matter of embryos' rights is new territory," says George Annas, professor of legal medicine at Boston University. "There are no statutes on the books here or in Australia." Experts in both countries have suggested that the wishes of the parents should be paramount in determining the fate of leftover zygotes, and that these wishes should be put in writing. Unfortunately, it is too late for the Rioses to do so. Baffled officials at Queen Victoria hospital are therefore looking for guidance from a committee appointed in 1982 by the state of Victoria to study legal questions raised by IVF technology. The committee's report is due within two months, and with the embryos' fate hanging in the balance, its conclusions are no longer a matter of abstract theorizing. --By Claudia Wallis. Reported by Deborah Kaplan/Los Angeles and Ann Westmore/Melbourne

With reporting by Deborah Kaplan/Los Angeles and Ann Westmore/Melbourne