The Case of the Orphan Embryos

  • George P. SmithII


The major news story of June 18, 1984 in Australia, and indeed around the world, was the discovery that two frozen embryos might well become, if successfully implanted in a surrogate mother, heirs to an estate left by the death of what was thought originally to be their biological parents.1


Artificial Insemination Freeze Embryo Surrogate Mother Uniform Code Australian Medical Association 
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  1. 1.
    D. Hancock & D. Ford, Frozen Embryo Orphans Heir to $8m Estate, The Australian, June 18, 1984, at 7, col. 7. In 1983, Canberra, Australia, became the first place in the world where a human pregnancy resulted from a fertilized egg that had been frozen, thawed, and implanted in the mother’s womb. Branigan, Frozen Embryos Trigger Debate by Australians, Wash. Post, May 17, 1983, at 1, col. 6. The costs for developing and maintaining an in vitro or test-tube baby program for 7 years in order to produce Australia’s first progeny therefrom cost over $1 million. Williamson, Test Tube Births: An Uncertain Way Ahead, The Nat’l Times, Feb. 7-13, 1982, at 12, col. 5.Google Scholar
  2. 2.
    C. Wallis, Quickening Debate Over Life on Ice, Time, July 2, 1984, at 46.Google Scholar
  3. 3.
    Lawson, Molloy, Jobson, & Walley, The Frozen Embryo Mystery: The Life and Strange Times of Elsa Rios, The [Australian] Bulletin, July 3, 1984, at 22.Google Scholar
  4. 4.
    Gavigan, The Criminal Sanction as It Relates to Human Reproduction: The Genesis of The Statutory Prohibition of Abortion, 5 J. Legal History 20 (1984).CrossRefGoogle Scholar
  5. 5.
  6. 6.
    Id. at 21.Google Scholar
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  8. 8.
    Ethics in Medical Research Involving the Human Fetal Tissue, para’s. 2.9-2.10 (Canberra, 1983).Google Scholar
  9. 9.
    Bates, Legal Criteria for Distinguishing Between Life and Dead Human Fetuses and Newborn Children, 8 U. New S. Wales L. Rev. 143 (1983).Google Scholar
  10. 10.
    McKay v. Essex Health Auth., 2 W.L.R. 890 (1982).Google Scholar
  11. See Reagan, Abortion and The Conscience of The Nation, 9 Human Life Reu. 7 (1983).Google Scholar
  12. 11.
    Atty. Gen. for The State of Queensland (Ex rel. Kerr) and Arthur v. T., 57 Australian L.J. Rev. 385 (1983). This would be, essentially, the same posture of the United States courts as a consequence of Roe v. Wade, 432 U.S. 464 (1977). But see M. Tooley, Abortion and Infanticide (1983).Google Scholar
  13. 12.
    Lucas, Abortion in New South Wales—Legal or Illegal, 52 Australian L. J. 327–339 (1978). For a comparative analysis of the American and British posture here.Google Scholar
  14. see Annas & Elias, In Vitro Fertilization and Embryo Transfer: Medico-Legal Aspects of a New Technique to Create a Family, 17 Fam. L. Q. 199 (1983). Edwards & Steptoe, Current Status of IVF and Implantation of Human Embryos, The Lancet 1265 (Dec. 1983).Google Scholar
  15. 13.
    Supra note 9, at 42-43.Google Scholar
  16. 14.
  17. 15.
    Supra note 1.Google Scholar
  18. 16.
  19. 17.
    Supra note 1. It was determined by the Victorian government on December 3, 1987, that the frozen embryos will be thawed and, if still “alive,” given to a childless couple. Should subsequent birth and survival occur, no share in the inheritance of the Rios’ estate will pass to the offspring. Dalton, Dead Couple’s Embryos to be Thawed, Wash. Post, Dec. 4, 1987, at A38, col. 1.Google Scholar
  20. 18.
    See W. Raushenbush, The Law of Personal Property §§ 1.5, 1.7 (3rd ed. 1975).Google Scholar
  21. 19.
  22. 20.
    G. C. Bogert & G. T. Bogert, Handbook of the Law of Trusts 287, 305 (5th ed. 1973).Google Scholar
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    M. O’Neill & B. Hutton, Advice Exists on Rios Embryos, Says Health Council, The [Australian] Age, July 4, 1984, at 10, col. 3.Google Scholar
  24. 22.
    Sydney Sunday Telegraph, Nov. 7, 1982, at 6, col. 1. The South Australian government gave its approval in April, 1984, to the freezing of fertilized ova—all as part of its test tube baby procedures. It specifically prohibited the use of frozen fertilized ova for scientific or genetic research and the practice of surrogate. [Sydney] Sunday Morning Herald, April 23, 1984, at 9, col. 5.Google Scholar
  25. 23.
    R. Scott, The Body as Property 202 (1982). See Proceedings of the Conference, In Vitro Fertilization: Problems and Possibilities, March 11, 1982, Monash University, Center for Human Bioethics, Melbourne, Australia.Google Scholar
  26. 24.
    M. Kirby, Foreword, Making Babies: The Test Tube and Christian Ethics at ix (1984).Google Scholar
  27. 25.
    Supra note 3, at 25.Google Scholar
  28. 26.
    Sec. 2.16.Google Scholar
  29. 27.
    Sec. 2.19.Google Scholar
  30. 28.
    Sec. 2.18. See Orphaned Embryos May Be Left to Thaw, Sydney Morning Herald, Sept. 4, 1984, at 3, col. 1.Google Scholar
  31. 29.
    Sec.’s., 3.25-3.28.Google Scholar
  32. 30.
    Sec. 3.29.Google Scholar
  33. 31.
    See Victoria Will Bar Payments to Surrogate Mothers, Sydney Morning Herald, Sept. 4, 1984, at 3, col. 2. What could be regarded as the British counterpart of the Waller Committee—the Warnock Commission—proposed a ban on surrogate mothers, yet concluded that embryo research should be permitted until the fourteenth day after fertilization when the first identifiable features of the embryo develop. Time, Aug. 6, 1984, at 50. See Report of the Committee of Inquiry into Human Fertilization and Embryology (July 1984) The Warnock Report).Google Scholar
  34. See generally Smith, Intimations of Life: Extracorporeality and the Law, 21 Gonz. L. Rev. 395 (1986).Google Scholar
  35. 32.
    Supra note 3, at 25.Google Scholar
  36. 33.
    Australians Reject Bid to Destroy 2 Embryos, N.Y. Times, Oct. 24, 1984, at A 18, col. 1.Google Scholar
  37. 34.
    In an interview conducted by David Hartman of the ABC Television Network, Good Morning America’s program of October 24, 1984, with Mr. Hayden Storey, the author of the legislation in Victoria, Mr. Storey stressed that his proposal had only specific application to the “special category” which the Rios’ embryos enjoyed and that he anticipated no extension to other possible cases.Google Scholar
  38. 35.
    Corns, Legal Regulation of In Vitro Fertilization in Victoria, [Victoria] Law Institute Journal 838 (July 1984).Google Scholar
  39. 36.
    Supra note 3, at 25.Google Scholar
  40. 37.
    Asche, Ethical Implication on the Use of Donor Sperm, Eggs and Embryos in The Treatment of Infertility, 57 [Australian] Law Institute J. 716–719 (1983).Google Scholar
  41. 38.
    Nossal, The Impact of Genetic Engineering on Modern Medicine, 27 Quandrant 22–27 (Nov. 1983).Google Scholar
  42. 39.
    Annas, Redefining Parenthood and Protecting Embryos: Why We Need New Laws, Hastings Center Rep. 50 (Oct. 1984).Google Scholar
  43. 40.
    For an eloquent analysis of legislative, as opposed to judicial strengths in managing the problems of in vitro fertilization, see— from Sydney, Australia—Justice Michael D. Kirby’s address, IVF—The Scope and Limitation of Law,” presented in London, England, September, 1983, at The Conference of Bioethics and The Law of Human Conception—In Vitro Fertilization.Google Scholar
  44. 41.
    See Test-Tube Babies: A Guide to Moral Questions, Present Techniques (W. Walter & P. Singer eds. 1982).Google Scholar

Copyright information

© Springer Science+Business Media New York 1989

Authors and Affiliations

  • George P. SmithII
    • 1
  1. 1.The Catholic University of America School of LawUSA

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