Test Tube Babies: Legal Issues Raised by In Vitro Fertilization
![handle is hein.journals/glj67 and id is 1305 raw text is: Test Tube Babies:
Legal Issues Raised by In Vitro Fertilization*
DENNIS M. FLANNERY**
CAROL DRESCHER WEISMAN***
CHRISTOPHER R. LIPSET****
ALAN N. BRAVERMAN*****
Before the federal or state governments undertake any action
affecting IVF research or health care programs, a number of legal
issues should be addressed. This article surveys the current state of
the law pertaining to IVF and examines constitutional issues raised
by the use of VF for procreation and for pure research. It also
examines the government's potential tort liability for injuries that
might occur in the course of IVF research or health care programs.
The birth of Louise Brown in July 1978 vividly demonstrates that human
life can now begin outside a woman's body.I This baby was conceived through
a process known as in vitro fertilization or IVF.2
In response to the test tube baby's birth and to an application for a grant
involving IVF research, the Department of Health, Education, and Welfare
(HEW) and its Ethics Advisory Board (EAB) undertook a study of the legal,
ethical, social, and scientific issues raised by IVF.3 In June 1979, HEW
published the Board's Report, which approved HEW funding of IVF research
under certain conditions.4 This article, originally prepared as a memorandum
to the EAB, focuses on the legal issues surrounding government regulation of
IVF.
As the EAB Report explains, IVF procedures often begin with a woman's
taking hormones to stimulate the production of several eggs or ova.5 After the
eggs are removed in a surgical procedure called laparoscopy, they are placed
in a laboratory medium to which sperm are added. Eggs successfully fertilized
*The opinions expressed are those of the authors only and should in no way be attributed to their law
firm.
**Partner, Wilmer, Cutler & Pickering, Washington, D.C. A.B. 1961, Fordham University; LL.B.
1964, University of Pennsylvania.
***Associate, Wilmer, Cutler & Pickering, Washington, D.C. A.B. 1967, Brown University; J.D. 1974,
Catholic University of America.
****Associate, Wilmer, Cutler & Pickering, Washington, D.C. A.B. 1971, Princeton University; J.D.
1974, University of Pennsylvania.
*****Associate, Wilmer, Cutler & Pickering, Washington, D.C. A.B. 1969, Brandeis University; J.D.
1975, Duquesne University.
1. See, e.g., All About That Baby, NEWSWEEK, Aug. 7, 1978, at 66; The First Test-Tube Baby, TIME,
July 31, 1978, at 58; N.Y. Times, July 26, 1978, at 1, col. 5.
2. As used in this article, the term IVF encompasses fertilization itself, donation of semen, extraction
of ova, development of blastocysts, and implantation of a blastocyst in the uterus.
3.- ETHICS ADVISORY BOARD OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,
REPORT AND CONCLUSIONS: HEW SUPPORT OF RESEARCH INVOLVING HUMAN IN VITRO FERTILIZA-
TION AND EMBRYO TRANSFER, 44 Fed. Reg. 35,034 (1979) [hereinafter EAB REPORT].
4. Id. at 35,057.
5. Id. at 35,034.
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Test Tube Babies: Legal Issues Raised by In Vitro Fertilization
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