Human Life vs. Property: Where does business end and morality begin? Essay

Human Life vs.

Property: Where does business end and morality begin?            In this technologically-advanced world we live in, man has become empowered to do anything. And by anything, this means we now have the power to make life more convenient, nature more restrained or wild as we want it to be and basically, the power to act like God. With the advent of human cloning and in vitro fertilization, is there no end to the capacities of man? Have we become Gods in our own rights that we are able to make the distinction between the miracle of life and mere property? The issue involving frozen embryos has sparked a lot of debates on our race’s humanity as well as morality. As expected, it has brought forward moral issues that are difficult to deal with, much less, come to terms with.

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            According to Faggioni (2002), human embryos that were conceived in vitro and in numbers exceeding the possibility of simultaneous transfer into the mother’s body are frozen with the purpose to allow for possible repetition of the embryo transfer in the not infrequent case of failure on the first attempt or in those cases where it is postponed. Faggioni also points out that embryos are frozen in order to be transferred into a surrogate mother who carries the pregnancy to term for another couple, or to give sufficient time for genetic examination of some of the embryonic cells for the purpose of transferring only high quality embryos through the elimination of those found defective, or lastly in order to store valuable living ceils for experimental use or other instrumental purposes.            However, it is worth noting that despite our technological advancements on techniques of cryopreservation, the survival of the embryo still borders on the risky side. It has been said that it is not surprising to see majority of embryo die or suffer irreparable damage in the process of freezing or subsequent thawing. Aside from these immediate effects, recent studies on animal subjects indicate significant behavioral and morphofunctional variation in adults originating from frozen embryos (Faggioni, 2000).            Despite these facts, most existing legislation in this area places no limit on the number of embryos which may be produced for in vitro fertilization.

Moreover, it is not surprising to see controversy arise when the embryos are frozen, or cryopreserved, for a period of time during which unforeseen circumstances, such as death or divorce arise, and the couples can no longer agree upon what to do with the stored embryos. And this is where the issues of morality and ethics are hurled into the spotlight.            According to LaGatta (2002) of the Florida Coastal Law Journal, courts have been consulted in issues involving the plight of frozen embryos. In analyzing the rights of the frozen embryos, it is thus essential to look into actual cases and how the courts resolved them. One of the earliest cases which involved frozen embryos is Davis vs. Davis [842 S.W.

2d 588 (Tenn. 1992)]  where the dispute began as a result of a divorce action in which the Davises did not have a disposition agreement and could not agree on how the embryos should be disposed.            LeGatta (2002) notes that in the case of Davis vs. Davis [842 S.W.2d 588 (Tenn. 1992)],  the trial court relied on the “person” theory, and awarded “custody” to Mrs. Davis, concluding that it was in the best interest of the embryos to allow Mrs.

Davis custody and the ability to implant the embryos. On appeal, the Tennessee Court of Appeals relied on the “property” theory, finding that Mr. Davis had a constitutionally-protected right and veto power not to procreate; and further found, there was no compelling state interest to force a party to become a parent against his or her own will. The court of appeals determined that under the “property” theory, both Mr. and Mrs. Davis should share joint control over the remaining frozen embryos and remanded the case to the trial court with instructions to enter an order giving them “joint control . .

. and equal voice over their dispositions.” The Supreme Court of Tennessee granted review because of the tremendous importance of the case in determining the formulation and development of law regarding new reproductive technology, such as IVF and cryopreservation.

            In this particular case, the Supreme Court of Tennessee established a methodology for reviewing disposition rights and held: (1) the preferences of the donors should be considered first; (2) if their wishes cannot be ascertained, their prior disposition agreement should be followed; and (3) if there is no disposition agreement, then the interests of the parties should be weighed. The court concluded that the frozen embryos were neither persons nor property, but instead, were entitled to special respect because of their potential to become human life. Finally, because the Davises were in dispute, and there was no disposition agreement, the court balanced the procreative interests of the parties, and held that ordinarily the right not to procreate (avoid the consequences of genetic parenthood) will outweigh the right to procreate (LaGatta, 2002).            However, in the case of Kass vs. Kass [No. 19658/93, slip op.

7376, 1997 WL 563419 (N.Y. App. Div. Sept. 8, 1997)], the court held that a husband and wife’s prior disposition agreement, which allowed for unused embryos to be donated to the IVF program clinic for research, would be enforced instead of allowing the wife to gain possession.

According to the court, this decision is based on the premise that that “[a]greements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding, and enforced in any dispute between them” (LaGatta, 2002).            In the same paper, LaGatta (2002) presented a more complex issue in the case of Litowitz v. Litowitz where the husband and wife contracted with a female egg donor and IVF program in hopes of producing a child. In this particular case, the Litowitzs signed a consent and disposition agreement, which awarded them the ability to determine disposition, but failed to establish how the embryos would be disposed of, except for a provision stating that if they could not agree to disposition, they must petition the court for instructions. The trial court found it was in the best interest to award the embryos to Mr. Litowitz, so they could be put up for adoption, and the court of appeals affirmed. Following the ruling in Davis, the Court of Appeals of Washington held that “[o]rdinarily, the party wishing to avoid procreation should prevail .

. . .” Mrs. Litowitz did not contribute any gametes to the embryos, and consequently, did not have a constitutional right to procreate. The court of appeals concluded that Mr. Litowitz, as the only gamete donor before the court, had the constitutional right not to procreate and had the right to control the destiny of the embryos.            The following cases and discussion only shows that laws and regulation must be implemented to be used as guides in the proper disposition of embryos.

Should frozen embryos be treated as mere properties?            According to Thomas (1997) of the Saint Mary’s Law Journal, three possible views have emerged as to the legal status of embryos under state law: (1) embryos as life, (2) embryos as property, and (3) embryos as neither life nor property but deserving of “special respect.” She added that currently, IVF litigation shows that some states favor one view over the others and that unlike jurisprudence, state legislative action on IVF has generally been related to the use of embryos in research and makes no direct comment on their status as life or property. Louisiana is perhaps the only state, so far, which has crafted extensive legislation dealing directly with IVF and cryopreservation. Pursuant to that legislation, the Louisiana legislature granted embryos the status of a “judicial person” with the right to sue and be sued (Thomas, 1997).

            Going back to the issue of whether frozen embryos should be regarded as property, it has been argued by some experts that it should be classified as such. John Robertson, a professor at the University of Texas School of Law and a prolific commentator on IVF and cryopreservation, argues that defining embryos as property is not an attempt to equate them with tangible property or physical possessions; rather, he and others apply the property designation to embryos as a means of describing who has the right to make decisions about disposition. This reasoning also suggests that embryos deserve special respect because they have the potential to become life; however, affording embryos special respect does not necessarily mean that parents have no dispositional authority over their own embryos. Furthermore, the property argument includes the concept that embryos and their disposition can be governed by contracts.

Primarily, contracts relating to embryos are embodied in so called pre-freeze agreements.            The point of view that embryos should be treated as life is morally rooted from the pro-life movement of the Catholic Church. This is primarily because the Church has always been of the belief that life begins from conception –or from the moment the sperm meets the egg. According to Thomas, the Church-accepted view that embryos should be treated as life is not judicially accepted. Both Roe v.

Wade [410 U.S. 113 (1973)] and Planned Parenthood v.

Casey [505 U.S. 833 (1992)] prevent states from interfering in a woman’s reproductive decision prior to the viability of an unborn child. The rationale for this view is that, once pregnant, a woman is “uniquely affected” by the pregnancy, and should not be overburdened by state interference (Thomas, 1997).

References:Alcorn, Randy 2006: Are Frozen Embryos Worthy of Protection? [online]Available at:[cited on: July 15, 2006]De Gouveia, Maria, 2003: The Orphan Embryos: A Case Study in Bioethics [online]Available at:

html[cited on: July 15, 2006]Diamond, Eugene 1999: Ethical issues in the disposition of frozen embryos by divorcing couples [online]Available at:

htm[cited on: July 15, 2006]Faggioni, Maurizio 2002: The Question of Frozen Embryos [online]Available at:[cited on: July 15, 2006]Kolata, Gina 1992: Fertility Advances Leave Trail of Ethical Questions [online]Available at:

html?sec=health;res=9E0CE5DD1539F936A35755C0A964958260[cited on: July 15, 2006]Alghrani, Amel. Deciding the Fate of Frozen Embryos, 13 Med. L. Rev. 244 (Summer, 2005).Davidoff, Bill. Frozen Embryos : A Need for Thawing in the Legislative Process,            47 SMU L. Rev.

131 (September/October, 1993).LaGattta, Kellie. The Frozen Embryo Debate Heats Up: A Call for Federal Regulation and Legislation, 4 Fla. Coastal L.

J. 99 (Fall, 2002).Siegel, Andrea Michelle. Legal Resolution to the Frozen Embryo Dilemma, 4 J. Pharmacy ; L. 43 (1995).Thomas, Lynn. Abandoned Frozen Embryos and Texas Law of Abandoned  Personal Property: Should there be a connection?, 29 St.

Mary’s L.J. 255 (1997). 


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