Court to rule on embryo suit

ALBANY, N.Y. - Soon after they were married, Maureen and Steven Kass failed to conceive naturally and began trying to make babies the high-tech way. Technology failed, however, and so did their marriage. What remains of their union and their dreams for children are five frozen embryos - described as "21st century difficulties" by a judge on the New York State Court of Appeals.

The seven-judge panel heard arguments Tuesday in a potentially precedent-setting dispute over the fate of the embryos. The case is part of minefield of legal and ethical dilemmas created by breakthroughs in artificial reproduction, a branch of medicine racing far ahead of attempts by legislatures and courts to regulate or even understand the consequences of science that is altering some of the most private and emotion-laden of human choices.

Maureen Kass, a 40-year-old secretary from Long Island, N.Y., regards the embryos, which have been frozen since her marriage collapsed in 1993, as her last best chance at being a mother.

"She had them with the man she loved, her husband, and he was healthy. She didn't want to go out and take sperm from an anonymous donor. She didn't feel that adoption with donor eggs was a viable alternative, because it is a non-genetic child. She wants her own children," said her lawyer, Vincent. Stempel.

Steven Kass, a 37-year-old engineer, demands that the embryos be destroyed because he does not want to raise children with his ex-wife and because the mere existence of the embryos is "paralyzing" his relationships with other women.

"I don't want to have children raised with Maureen. It is going to create a very strained, dysfunctional family situation," Kass said Tuesday outside the courtroom. "It is difficult to get on with another marriage, knowing that you have something still hanging around, lingering from a past marriage."

The legal status of frozen embryos has not been defined. The embryos exist, according to scholars of reproductive technology, in a kind of legal limbo, far less protected by the law than a fetus and yet, to a vague degree, more protected than mere property.

"What makes this very confusing is that we are asking the courts to decide what is the status of the embryo in and of itself," says R. Alta Charo, associate professor of law and medical ethics at the University of Wisconsin.

The five frozen embryos in question - scientifically called pre-zygotes - remain stored in liquid nitrogen in a Long Island, hospital. No larger than a grain of sand, they each consist of four to six cells.

Besides raising questions about the degree to which these frozen specks may or may not represent human life, the Kass case is pushing New York's highest court, and may end up taking the U.S. Supreme Court, into a legal no-man's land. So far, there is no guiding precedent from federal courts. Tennessee had a similar case three years ago, ruling for a man's right not to procreate. But a ruling by the New York court, generally regarded as one of the most important and influential state panels, is likely to resonate in courts around the country.

04-02-98