Whose Baby Is That? Such Questions Grow in This Era of High-Tech Births, Warns Dr. Edward Wallach

“It used to be easy—a man and a woman,” says Dr. Edward Wallach with wry wistfulness. Human reproduction certainly isn’t that simple now that the possibilities include fertilization in the laboratory, frozen embryos and surrogate motherhood. Significantly, the laws of the land have yet to be written to govern the men and women bearing and raising the children that result from this extraordinary technology. Currently, in cases pending in California and New Jersey, surrogate mothers are contesting the legality of their agreements to give up the babies they carried to term. The New Jersey trial is scheduled to begin next week.

Dr. Wallach, 53, chairman of the department of gynecology and obstetrics at the Johns Hopkins University School of Medicine and past president of the American Fertility Society, served on an AFS committee that recently issued a report providing guidelines to today’s physicians. With correspondent Giovanna Breu he discussed the ethical complexities that now accompany the miracle of birth.

Why do we need fertility guidelines?

For eight years or so we have seen dramatic advances in human reproductive technology. We felt that it is important today to stand back and make sure we are aware of the implications and potential hazards.

Why did the Fertility Society take on the job?

Largely because government hasn’t. The American Fertility Society, founded in 1944, now has a membership of 10,000 obstetricians, gynecologists and other physicians, as well as scientists, nurses, pathologists and even attorneys. We felt guidelines would help.

How has reproductive technology raised new legal and ethical problems?

Though I know of no such case yet, it is not out of the realm of possibilities to have up to five people directly involved in producing a baby: the man and woman who will be the rearing couple, the donor of the egg, the donor of the sperm and the surrogate mother. This raises significant questions as to the legal rights and social responsibilities of the individuals involved.

How many babies have been born as a result of high-tech medicine?

In the U.S. there are more than 10,000 babies a year conceived by artificial insemination, and there are at least 800 in vitro babies now.

What are your society’s recommendations on artificial insemination?

We support this procedure in cases of couples in which the husband for a variety of reasons is unable to ejaculate enough sperm cells or for those situations where it is ill-advised for him to provide his genetic material for a pregnancy.

And your guidelines on sperm donors?

There must be careful screening. We search the donor’s background for genetically transmitted diseases and do medical histories to determine that these men are not drug users or promiscuous. Physicians look for such diseases as gonorrhea, herpes or AIDS.

Do the guidelines address the right of the sperm donor to visit the child?

We recommend that the donor be kept anonymous and that he relinquish all parental rights. But we will also keep confidential records in case there is ever a problem with a baby born as a result of artificial insemination. Suppose the infant is found to have a hereditary disorder, then the clinic can at least trace the donor to inform him and to make sure he will not be used again.

Why is donor anonymity recommended?

Many rearing couples would be uncomfortable thinking the donor knew who they are. The donor might make demands on them or the baby that would not be honored legally but would be extremely embarrassing to the family. In most instances—though I can’t say in all cases—sperm donations are made without any further involvement by the donors. The laws of 29 states accept the husband of the woman who had the baby—whether or not he is the sperm provider—as the father.

Are the issues with in vitro fertilization as complicated?

More so because you have a large number of possibilities. With regard to where the egg and sperm come from, there are four possible combinations: husband’s sperm / wife’s egg, wife’s egg / substitute sperm, husband’s sperm / substitute egg and substitute sperm / substitute egg. Then you have two other variables—where the pregnancy occurs and where the sperm and egg are fertilized. In all there are perhaps 16 combinations.

In how many places can conception occur?

Three—in the wife’s reproductive tract, the surrogate’s reproductive tract or in vitro in the laboratory.

Who is the mother if the egg comes from one woman, develops in another and a third person rears the baby?

When we have a genetic mother, a gestational mother and a rearing mother, the courts and state legislatures will have to make the final determination on parentage. The statement used to be, “It is a wise man who knows his child,” because it has always been so hard to establish paternity. Now that could be said about women as well.

What about parentage when the father uses his own sperm to create a child in a surrogate mother?

For surrogacy to work on a practical level, the law would have to be explicit that the rearing mother is the mother of record and that her husband who donated the sperm is the father. So far, there are no specific statutes in the United States regulating surrogate motherhood.

What problems concern surrogate mothers?

Our report said it is ethically unacceptable to use surrogate motherhood for nonmedical reasons, such as for convenience or vanity. We are also very much concerned about the potential hazard to surrogates of pregnancy-related illnesses, the possible harm of embryo transfer or harm to the offspring if the surrogate doesn’t adhere to an appropriate diet or is a drug user or smoker. And we don’t know enough about the effect of bonding that occurs between the surrogate and the fetus during nine months of pregnancy. The effects of all this on both the surrogate’s and rearing families are as yet unknown because no one has records of a large number of such cases.

Is it ethical to create life with the intention of giving up the child?

You can argue that either way, but I think that to create life and give it up to a couple who is unable to do so is constructive. I worry about creating a breeder class, although I know of no such trend. But I think some women like to be surrogates, not for the money but for the satisfaction of helping others.

What are the various ethical problems raised by the freezing of sperm, egg and embryo?

The biggest ethical problem is to whom the embryos belong after they have been frozen should the parents die or if they decide they no longer want the embryos.

Didn’t lawmakers in Australia decide that embryos left by a couple who was killed be made available for implantation?

Yes, but you also need to worry about what happens if the parents don’t die but simply change their mind and don’t want the embryos. Whose decision is it to destroy or donate these embryos? Are there any inheritance rights? I know of no laws establishing such rights to date.

Your report spoke of pre-embryos. What are they?

A pre-embryo is the embryo between conception and the second week after fertilization. At this point there is no developed central nervous system. You can remove a cell, and the pre-embryo still has the potential of becoming a complete embryo. Part of the pre-embryo is going to become the placenta and the membrane, which are not a part of the embryo itself.

Why was this category established?

It’s important to differentiate between various stages of embryonic development.

By defining pre-embryos, the way is eased to donate or not transfer them if there’s an excess of them.

And to deflect religious critics who argue that life begins at conception?

No. I think people who already feel that way will continue to feel that way.

What should one tell the child about his or her parentage in all these situations?

That’s an individual decision. I doubt many parents would tell a child that he or she is the result of artificial insemination. With in vitro, most parents seem to be proud of the achievement. In surrogate cases, I don’t have an answer.

It is somewhat analogous to adoption. With adoption the accepted approach is to be honest with the child.

Can physicians refuse to conform to your guidelines in using new reproductive


We recognize the rights of physicians to act according to their own ethical judgments. I doubt the guidelines of today will hold for tomorrow. They are forever going to have to be revised, reinterpreted and made applicable to ever-changing technologies. Ultimately, I hope that our judicial system and social mores will develop a workable code.

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