Test-Tube Tug-Of-War

By ADAM COHEN

It's an old debate among husbands and wives: how many children to have. But Steven and Maureen Kass of Amityville, N.Y., bring something new to the issue: they're wrestling with the question five years after their divorce. The Kasses have five frozen embryos, made from his sperm and her eggs, left over from their married days of trying to conceive by in-vitro fertilization. Maureen, who is 40 and childless, wants to use them to have children. Steven, 38, is adamant that he doesn't want kids with his ex-wife. He is seeking to donate the embryos to research. Their fight has ended up in New York's highest court, which hears arguments this week. Legal experts expect a landmark decision that will reverberate nationally on the hotly contested question of just who controls frozen fertilized tissue that has the potential to become human life.

From Internet privacy to genetic testing, technology has raced ahead too fast for legal doctrine to keep up. And nowhere is the gap between what scientists have discovered and what judges must rule on greater than in the realm of artificial reproduction. An estimated 80,000 to 100,000 frozen embryos--fertilized eggs no larger than a grain of sand--are being preserved in liquid-nitrogen canisters across the country. As many as 20,000 of them could be in legal limbo. As of now, the courts have no clear rules for resolving questions of ownership and control. Lawyers can't even agree on whether a frozen embryo should be regarded as a human life form, like a fetus, or an inanimate piece of property.

The desire to raise a family was one of the things that first brought the Kasses together. Steven, who runs an engineering company with his brother, met Maureen at a friend's engagement party in 1986. They began dating the following spring. They agreed they wanted children. But after their marriage, they had trouble conceiving. The couple spent five years and $75,000 at a Long Island fertility clinic; Maureen was implanted with fertilized eggs at least nine times. The efforts produced nothing, and the marriage collapsed. "I think she felt that if we were not going to have kids, why stay with me?" he says.

Both Maureen and Steven signed a clinic consent form directing that any unused embryos be donated for research. But a month before she sued Steven for divorce, Maureen told the hospital she didn't want the embryos destroyed. Her lawyer, Vincent Stempel, points out that she had surgery to create the embryos, while her ex-husband only donated sperm. "She went through a lot of physical pain to have these eggs extracted," he says. And, he notes, they may represent her last chance of becoming a biological mother.

Here's the catch: if Maureen succeeds in creating children, Steven will be financially responsible for them under New York law, even though he tried to stop them from being born. He argues that he shouldn't be forced to procreate with a woman whom he now disagrees with on nearly everything. "I don't want my kids being brought up by her," Steven says. "I don't want them to have her input." Just knowing that Maureen could one day turn their embryos into children has taken its toll on Steven. "Even dating is difficult," he says. He usually waits until the third or fourth date, he says, before explaining, "I am divorced, but I have these frozen embryos hanging around."

The trial judge ruled for Maureen, holding that once the sperm and ovum are united--whether "in the private darkness of a Fallopian tube or the public glare of a Petri dish"--a human life has begun and it is the woman's decision whether or not to let it proceed. But the intermediate appellate court took Steven's side, rejecting the notion that the embryos are human life and emphasizing the consent form that both Kasses had signed.

Other state courts offer little guidance. A Tennessee court ruled in 1992 that a divorcing father could destroy embryos he had created with his wife. However, the decision turned on the fact that the wife planned to donate the eggs to an infertile couple, reducing her personal interest in them. Courts usually try to be Solomonic in their decisions, but in the Kasses' case that may not be enough. King Solomon had to decide the fate of only one baby, and it was alive.

--Reported by William Dowell/New York

With reporting by WILLIAM DOWELL/NEW YORK