Lamenting the End of the Wild, Wild West?

In the bioethics and law literature a common refrain is that the regulation of biotechnologies, especially reproductive technologies, is like the ‘Wild, Wild West.’  As medical technologies, such as IVF and cryogenic preservation, have become widely available the law has struggled to keep pace.  An absence of regulation has been a hallmark of this area of law, and something that many scholars, myself included, have lamented.  When problems and disagreements have inevitably arisen, courts were often the only source of legal authority available.  Courts have been asked to decide questions such as the disposition of cryogenic embryos in the event of divorce, and the validity of prior contracts granting one genetic parent exclusive control over any resulting embryos.

In some instances state legislatures have mobilized.  In theory this should be cause for celebration.  Policies can be made that draw from expert advice and are broadly designed.  In contrast, common law decisions must operate with reference to existing laws, which were often not passed or decided with the technologies at issue in mind.  Further, case law decisions are tied to the facts at issue of that singular case, which can limit their applicability to other similar, but different, cases.

Unfortunately, many state’s laws are instead growing sources of alarm. A number of states are passing laws that will hinder medical research and restrict citizen’s access to health care.  Regardless of one’s stance on abortion, these laws increasingly run the risk of imposing someone else’s values onto citizens, and violating their reproductive rights.

Louisiana was at the early forefront of these types of troubling legislative enactments.  The Louisiana legislature passed a law in 1986 that embryos are juridical persons.[1]  To date the effects of this law have been minimal, but as the number of controversies involving human embryos has increased, the law will grow in prominence.  In 2016, for example, the actress Sofia Vergara was sued by her own frozen embryos in a Louisiana suit.  The case was dismissed for lack of standing – the embryos, Vergara and her ex-husband are all in California. However, as the case demonstrates, we may very well see a rise of litigious embryos in the state in disposition disputes.

In April 2018 Arizona passed a law mandating that in the event of a dispute over disposition of frozen embryos, the party wishing to use them for reproduction is granted dispositional authority.  The party against reproductive use is absolved of legal parental responsibility for any resulting children.  The state forces them to become gamete donors and genetic parents against their will.  Arizona’s law empowers divorce courts to favor the party who “intends to allow the in vitro human embryos to develop to birth.”[2]  The law explicitly instructs a divorce court to overrule any prior agreement made by the couple in favor of the spouse that intends to use them for reproduction.[3]

Similarly, states, such as Texas, Arkansas, Louisiana and Indiana, have begun to enact legislation around the disposition of fetal tissue.  Texas’ version mandates that any tissue resulting from an abortion must be either buried or cremated.  Previously, a woman could choose to bury or cremate remains, but was not required to do so and the tissue was incinerated as medical waste (true?)  The law will hinder women’s access to abortion because clinics will likely need to contract with funeral homes for specialized services.  Clinics have expressed concern that, like requirements for admission privileges at local hospitals, they may be structurally unable to comply with the law.[4]    Moreover, the law imposes values and emotional burdens on women by legally and symbolically bestowing personhood to the early embryo or fetus.

Many of these emerging laws further agendas that are more closely tied to political symbols, not public health and safety. In Louisiana an embryo might be a legal person, but there are no legal limits on the number of embryos that can be transferred in one cycle of ICF to prevent another Octo-mom[5] occurrence.  The latter would do far more than the former to protect the health of embryos (and of living women too!).  Similarly, the focus on fetal tissue is misdirected given that the law surrounding the legal status and treatment of adult bodily remains is underdeveloped and in need of legislative attention.  Vaguely worded statutes and common law loopholes have led to the proliferation of commercial markets and illicit taking of adult remains.  Public health dangers have emerged when illicitly taken disease ridden adult tissues are used in medical transplantation. In contrast, there is little public health difference between mandated cremation under the new Texas law, and the policy of incineration with medical waste that was permitted before.

So, are we seeing the end of the ‘Wild, Wild West’? No.  The landscape is changing, but the changes miss the areas of needed regulation.  Lawlessness still abounds in large swaths of the regulatory landscape.

[1] LA R.S. 9:121 (West 2018).

[2] Sec. 25-318.03, amending Title 25, Ch. 3, Article 2 ARS Sec. 25-318.03 (formerly AZ Senate Bill1393) (signed into law April 2, 2018).

[3] Id.