1 See, e.g., “Test-Tube” Baby Born—It's A Girl and She's Doing Fine, Boston Globe, July 26, 1978, at 1; The Lovely Louise, The London Daily Mail, July 26, 1978, at 1. See generally All About That Baby, Newsweek, August 7, 1978, at 66; The First Test-Tube Baby, Time, July 31, 1978, at 58. According to news reports, the child, Louise Brown, was born at 11:47 P.M. on July 25, 1978 in Oldham, England. She was delivered by Caesarian section, weighed five pounds, 12 ounces at birth and apparently is in normal health.

2 A conceptus is the product of conception. Stedman's Medical Dictionary 307 (4th Unabridged Lawyer's Ed. 1976)Google Scholar.

3 For a detailed description of the IVF process, see Edwards, Bavister, & Steptoe, Early Stages of Fertilization In Vitro of Human Oocytes Matured In Vitro, 221 Nature 632 (1969)CrossRefGoogle Scholar; Reilly, In Vitro Fertilization—A Legal Perspective, in Annas, G. & Milunsky, A., Genetics and the Law 359 (1975)Google Scholar; Steptoe, & Edwards, Laparoscopic Recovery of Preovulatory Human Oocytes After Priming the Ovaries With Gonadotrophins, 1 The Lancet 683 (1970)CrossRefGoogle Scholar.

4 IVF could be used to treat women who suffer from blocked or nonexistent fallopian tubes, see 117 Cong. Rec. 7675 (1971); Reilly, supra note 3, at 360, the largest cause of infertility in women. Premature Birth of a Test-Tube Baby, 225 Nature 886, 886 (1970)CrossRefGoogle Scholar. Women for whom pregnancy would be hazardous, impossible, or undesirable could have an oocyte removed from their body and fertilized in vitro, and then could hire a “surrogate mother” to carry the conceptus to term. This includes women who have heart problems, partial paralysis, a history of miscarriages, or who are concerned about the transmission of undesirable inheritable characteristics or improperly matched Rh blood factors, or who do not want to interrupt their lives because of pregnancy. See Reilly, supra note 3, at 370; Smith, Through the Test-Tube Darkly: Artificial Insemination and the Law, 67 Mich. L. Rev. 127, 130 (1968)CrossRefGoogle Scholar.

Some view surrogate motherhood as “beneath contempt: women are not brood mares or sows.” Eisenberg, The Psychopathology of Clonal Man, in G. Annas & A. Milunsky, supra note 3, at 387, 392. Others are in favor of surrogate motherhood, and one commentator has even proposed a fair price for such a service: $15,000. Reilly, supra note 3, at 371. Surrogate motherhood would raise contractual problems: for example, could a surrogate mother be required to quit smoking or undergo an amniocentesis test? If it was discovered that the fetus was severely defective, could the surrogate mother be forced to undergo an abortion? If born defective, could the child sue the surrogate mother for negligence? Whose property or responsibility is the child if the legal parents die before the child is born? See Kinney, Legal Issues of the New Reproductive Technologies, 52 Calif. St. B.J. 514, 518 (1977)Google Scholar; Reilly, supra note 3, at 371-72. These problems probably could be resolved through a well-drawn contract, see Kinney, supra at 518, although one commentator has proposed legal regulation of surrogate motherhood. See Reilly, supra note 3, at 371. Surrogate motherhood also raises family law problems, such as whether the child is legitimate. These problems are analogous to those raised by artificial insemination by donor (AID), and should have similar legal solutions. See Hurdock, Gene Therapy and Genetic Engineering: Frankenstein is Still a Myth But It Should Be Reread Periodically, 48 Ind. L.J. 533, 554 (1973)Google Scholar; Smith, Manipulating the Genetic Code: Jurisprudential Conundrums, 64 Georgetown L.J. 697, 715-18Google Scholar.

Another possible use for IVF would be for one woman to donate an oocyte which would be fertilized in vitro and transplanted into the body of another woman who does not wish to use her own ova for eugenic reasons or because she is infertile, but who wishes to carry a child. This procedure would raise problems similar to AID. See Reilly, supra note 3, at 366.

5 See Kass, Making Babies—The New Biology and the “Old” Morality, 26 Pub. Interest 18, 23-25 (1972)Google Scholar.

6 Id. at 27-28.

7 See Kass, Babies By Means of In Vitro Fertilization: Unethical Experiments on The Unborn? 285 New Eng. J. Med. 1174, 1178 (1971)CrossRefGoogle ScholarPubMed; Smith, supra note 4, at 731-32.

8 See generally T. Howard & J. Rifkin, Who Should Play God? 106-09 (1977); Grossman, The Obsolescent Mother: A Scenerio, The Atlantic, May 1971, at 39, 42-45. In 1944 Dr. John Rock of Harvard, one of the developers of the birth control pill, performed the first in vitro fertilization of a human oocyte. None of the oocytes fertilized by Rock and by other IVF pioneers, such as Dr. Landrum Shettles of Columbia Presbyterian Hospital, lived more than a few days. T. HOWARD & J. Rifkin, supra, at 106. In 1961, Dr. Daniele Petrucci, an Italian biologist, claimed to have fertilized and grown a human oocyte in vitro for 59 days, at which time it had a discernible heartbeat. Petrucci destroyed the conceptus because it “became deformed and enlarged—a monstrosity.” After the Pope condemned his experiments, Petrucci gave up his efforts. See Ramsey, Shall We “Reproduce“? I. The Medical Ethics of In Vitro Fertilization, 220 J.A.M.A. 1346, 1347 (1972)CrossRefGoogle Scholar. In 1974, Dr. Douglas Bevis, an English obstetrician, claimed that he “was aware of three healthy children who had been born via IVF within the last two years. [Bevis] refused, ostensibly to protect the privacy of the persons involved, to divulge any details.” Reilly,supra note 3, at 360. Because Bevis did not substantiate his claims, they were viewed with skepticism. Id.

Edwards and Steptoe attempted approximately 100 implantations before the birth of the first “test-tube baby” was achieved. Some have contended that their accomplishment was aberrational. See Newsweek, supra note 1, at 69. Steptoe and Edwards “insisted, however, [that the birth] was not a one-time success or accident. Edwards said ‘the technique has tremendous possibilities but it's quite obvious at the present time only a very limited number of people can benefit from it.’ Edwards added, however, that ‘within a very short time, though, a large number of teams could be taking part and there will be an increasing number of successes.’” Baby Louise Called ‘Beautiful, Normal,’ Boston Evening Globe, July 27, 1978, at 20. Less than 12 hours after the Brown baby was born, a team at London's St. Thomas’ Hospital implanted an IVF conceptus into a woman. Newsweek, supra note 1, at 69.

9 The laparoscopic removal of oocytes is accomplished by the insertion of two thin glass tubes into a woman's ovaries through a small incision in her abdomen. One tube contains an optical instrument to view the oocytes, while the other removes them by suction. See Kass, supra note 5, at 23. Prior to this operation the woman is induced to super-ovulate by the injection of hormones. See generally Steptoe & Edwards, supra note 3.

10 Kass, supra note 5, at 23.

11 To fertilize an ovum, a sperm cell must become capacitated, a little understood process. In order to capacitate the sperm in vitro, the oocytes are placed in a petri dish containing a culture medium made up of the mother's blood, other fluids from her reproductive tract, and other nutrients. To encourage the growth of the conceptus after fertilization, it is kept in a moist environment at body temperature. See generally Shettles, Human Blastocyst Grown In Vitro in Ovulation Cervical Mucus, 229 Nature 343 (1971)CrossRefGoogle Scholar; Soupart, & Morgenstern, Human Sperm Capacitation and In Vitro Fertilization, 24 Fertil. Steril. 462 (1973)CrossRefGoogle Scholar.

12 Reilly, supra note 3, at 359.

13 Kass, supra note 5, at 24. The conceptus is implanted by picking it up with a small hollow tube called a pipette and then inserting it through the vagina and cervix into the uterus. Time, supra note 1, at 66.

14 See Edwards, & Sharpe, Social Values and Research in Human Embryology, 231 Nature 87 (1974)CrossRefGoogle Scholar.

15 See Reilly, supra note 3, at 364.

16 See, e.g., Kass, supra note 5, at 27.

17 Kass, supra note 7, at 1175.

18 See Kass, supra note 5, at 28-29.

19 See generally Friedman, Legal Implications of Amniocentesis, 123 U. Pa. L. Rev. 92 (1974)CrossRefGoogle Scholar.

20 See Kass, supra note 5, at 28-29.

21 Discussion, in G. Annas & A. Milunsky, supra note 3, at 397, 397. Some have contended that IVF is dehumanizing, immoral and “erodes the conjugal basis of marriage,” because it is a “non-sexual” form of reproduction. See Reilly, supra note 3, at 360. This is the official position of the Roman Catholic Church. Protestants, Jews, and Muslims generally feel that IVF and other forms of non-sexual reproduction do not pose theological problems so long as the mother and father are married. See Religious Leaders Differ on Implant, N.Y. Times, July 27, 1978, at A 16.

22 “I don't know whether a blastocyst is a ‘thing,’ but I know that it is not a person, not a human being.” Grad, New Beginnings in Life, in Hamilton, M., The New Genetics and the Future of Man 64, 68 (1972)Google Scholar. See Tiefel, The Cost of Fetal Research: Ethical Considerations, 294 New Eng. J. Med. 85, 85 (1976)CrossRefGoogle Scholar. For a detailed discussion of the medical and ethical arguments in favor of the unregulated use of IVF, see J. Fletcher, The Ethics of Genetic Control (1974); Lappe, Risk-Taking for the Unborn, Hastings Center Report, February 1972, at 1.

23 See Grad, supra note 22, at 67-68.

24 Note, The Potential for Genetic. Engineering: A Proposal for International Legal Control, 16 Va. J. Int. L. 403, 416 (1976)Google Scholar. One commentator has contended: “To attempt to [regulate] a field as complex as scientific experimentation on the unborn is presumptive, unprofessional and potentially harmful not only to the scientists but to future generations of infants who will not benefit from knowledge summarily prohibited now.” Munson, Fetal Research: A View From Right to Life to Wrongful Death, 52 Chi.-Kent L, Rev. 133, 145-46 (1975)Google Scholar.

25 See Grad, supra note 22, at 76.

26 See Munson, supra note 24, at 151.

27 Joseph Fletcher, a medical ethicist, has explained:

Fletcher, New Beginnings In Life, in M. Hamilton, supra note 22, at 78, 81.

28 Tiefel, supra note 22, at 85. See Ramsey, P., The Ethics of Fetal Research 27–28 (1975)Google Scholar; Kass, supra note 5, at 53. As one commentator observed: “It is true that the fetus is a collection of cells and tissues. But so are we all. The fetus is also more than that in the sense that we are all more than that.” Tiefel, supra note 22, at 87.

29 Kass, supra note 5, at 30.

30 For a detailed discussion of the medical and ethical arguments in favor of banning or regulating IVF, see P. Ramsey, Fabricated Man (1972); Kass, supra note 5; Kass, The New Biology: What Price Relieving Man's Estate? 174 Science 779 (1971)CrossRefGoogle ScholarPubMed; Ramsey, supra note 8.

31 “No adult has the legal power to consent to experiments on an infant unless the treatment is for the benefit of the infant.” Burger, Reflections on the Law and Experimental Medicine, 15 U.C.L.A. L. Rev. 436, 438 (1968)Google Scholar. See Grad, supra note 22, at 67-68.

32 See Kass, supra note 5, at 29-30; Oakley, Test-Tube Babies: Proposals for Legal Regulation of New Methods of Human Conception and Prenatal Development, 8 Fam. L. Q. 385, 395 (1974)Google Scholar.

33 See Kass, supra note 5, at 21; Kass, New Beginnings in Life, in M. Hamilton, supra note 22, at 15, 62. Dr. James Watson has argued, however, that IVF experimentation will lead to increased knowledge of contraception and thereby help alleviate the population problem. See 117 Cong. Rec. 7676 (1971).

34 Kass, supra note 7, at 1178; Smith, supra note 4, at 731-32.

35 45 C.F.R. § 46.204 (1977).

36 See Burger, supra note 32, at 436.

37 38 Fed. Reg. 31,748 (1973)Google Scholar.

38 Id.

39 Id.

40 Id. at 31,743.

41 39 Fed. Reg. 30,648 (1974)Google Scholar.

42 45 C.F.R. §§ 46.201-.211 (1977).

43 45 C.F.R. § 46.204 (1977).

44 39 Fed. Reg. 30,650 (1974)Google Scholar.

45 The federal rules define a fetus to be “the product of conception from the time of implantation.” 45 C.F.R. § 46.203 (1977).

46 The first human experimentation proposal scheduled for review by the Ethical Advisory Board is a proposal which seeks to determine the probability of IVF causing birth defects. See The Baby's OK; The Experts Are Wary—U.S. Medicine Research Stalled—For Now, Boston Globe, July 17, 1978, at 1, 16.

47 See Annas, G., Glantz, L., & Katz, B., Informed Consent to Human Experimentation: The Subject's Dilemma 206 (1977)Google Scholar.

48 Mass. Gen. Laws ch. 112, § 12 J (as amended 1976).

49 See Boston Globe, supra note 46, at 16. An abortus is the product of an abortion. Stedman's Medical Dictionary, supra note 2, at 3.

50 45 C.F.R. § 46.203 (1977). Moreover, one of the framers of the Massachusetts statute, William Delahunt, now a district attorney, recently stated that, in his opinion, the statute would not inhibit IVF experimentation in the Commonwealth. Boston Globe, supra note 46, at 16.

51 410 U.S. 113 (1973).

52 The court held that during the first trimester, the mother has an absolute right to an abortion; during the second trimester the state can regulate abortion only to protect the life and health of the mother. Id. at 164.

53 Id. at 150.

54 Id. at 158.

55 Id. at 163.

56 Reilly, supra note 3, at 364.

57 For example, it is well established that the state can regulate fetal research. See, e.g., Mass. Gen. Laws ch. 112, § 12 J (as amended 1976); 45 C.F.R. §§ 46.201-.211 (1977). See generally Wilson, Fetal Experimentation: Legal Implications of an Ethical Conundrum, 53 Denver L. J. 581 (1976)Google Scholar.

58 See Kass, supra note 5, at 32-33. Since the HEW regulations only control federally funded projects, the control of any IVF projects not so funded would require new legislation on the state or federal level.

59 See Hurdock, supra note 4, at 553.

60 See generally Note, supra note 24.

61 See Editorial, Genetic Engineering in Man: Ethical Considerations, 220 J.A.M.A. 721, 721 (1972)CrossRefGoogle Scholar. See also Kass, supra note 7, at 1178; Lappé, supra note 22, at 3.

62 See Kass, supra note 5, at 32-33.

63 Id. at 33.

64 A related situation resulted in the first lawsuit involving IVF. The plaintiffs, John and Doris Del Zio, an infertile couple, were advised by Dr. Landrum Shettles of Manhattan's Columbia-Presbyterian Medical Center that they could have a child by IVF. Allegedly, subsequent to the laparoscopic removal of two of Mrs. Del Zio's oocytes and their placement in a culture medium with her husband's sperm, Shettles’ superior, Dr. Raymond Vande Wiele, destroyed the culture because he was disturbed that Shettles had not consulted the hospital's committee on human experimentation and because he felt that an IVF child might be born with severe defects. Boston Evening Globe, July 6, 1978, at 1, 13; Time, supra note 1, at 61. A jury awarded Mrs. Del Zio $50,000 for emotional distress and awarded her husband nominal damages. Boston Globe, Aug. 19, 1978, at 2 (news item neither described the legal theory underlying the award, nor clarified whether Vande Wiele, or the Center, or both, lost their case).

65 See G. Annas, L. Glantz, & B. Katz, supra note 47, at 200.

66 See, e.g., Keeler v. Superior Ct., 2 Cal. 3d 619, 470 P.2d 617, 87 Cal. Rptr. 481 (1970). See Wilson, supra note 57, at 597-98. Viability is the time when the fetus is capable of living an independent existence outside the uterus, usually after about 20 weeks or when the fetus reaches a weight of 500 grams. Stedman's Medical Dictionary, supra note 2, at 1551.

67 See Abel, The Legal Implications of Ectogenetic Research, 10 Tulsa L. J. 243, 248-52 (1974)Google Scholar. Feticide is a crime in at least 21 states. See 40 Fed. Reg. 33,537 (1975)Google Scholar. The penalties for feticide are typically less than for homicide; some states classify feticide as manslaughter. Abel, supra, at 250.

68 See Wilson, supra note 57, at 637.

69 Id. at 638.

70 See W. Prosser, Handbook of the Law of Torts, § 12, at 56 (4th ed. 1971).

71 Id. at 59-60.

72 See Wilson, supra note 57, at 600-01; Note, Wrongful Death—Recovery for Death of A Viable Unborn Child, 39 Mo. L. Rev. 665, 666 (1974)Google Scholar.

73 Approximately 20 jurisdictions allow wrongful death recovery by the parents of a viable fetus, while one jurisdiction allows wrongful death recovery by the parents of a quick fetus. See Wilson, supra note 57, at 601. Quickening is “[t]he signs of life felt by the mother as a result of fetal movements, usually noted around the fourth or fifth month of pregnancy,” Stedman's Medical Dictionary, supra note 2, at 1183.

74 Current interpretations of wrongful death statutes, which make liability dependent on a live birth, viability, or quickness, are subject to criticism on the grounds that under such statutes the defendant's liability turns on when the injury occurred and whether the child was born alive, rather than on personal culpability. See Wilson, supra note 57, at 601. Moreover, the use of both quickening and viability in making legal determinations has been criticized. According to one commentator: “Lack of medical knowledge may have been one factor in making the stage of quickening legally significant, since quickening was determinable, at least by the mother, in a time when little about the fetus was readily understood.” Comment, The Non-Consensual Killing of an Unborn Infant: A Criminal Act?, 20 Buffalo L. Rev. 535, 536 (1970-1971)Google Scholar. Another commentator has observed: “[Viability] is a most unsatisfactory criterion, since it is a relative matter, depending on the health of the mother and child and many other matters in addition to the stage of development. W. Prosser, supra note 70, § 55, at 337.

75 See Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967); Troppi v. Scarf, 31 Mich. App. 240, 187 N.W.2d 511 (1971); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975); Robertson, Civil Liability Arising From “Wrongful Birth” Following an Unsuccessful Sterilization Operation, 4 Am. J. L. & Med. 130 (1978)Google Scholar.

76 Courts in jurisdictions that do not follow the “fright without impact” rule of damages for emotional distress, see Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968), have held that the parent-plaintiffs in a wrongful birth suit cannot recover damages for emotional distress. See, e.g., Park v. Chessin, 60 App. Div. 2d 80, 400 N.Y.S.2d 110 (1977); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975).

77 See Custodio v. Bauer, 251 Cal. App. 2d 303, 59 Cal. Rptr. 463 (1967); Troppi v. Scarf, 31 Mich. App. 240, 187 N.W.2d 511 (1971).

78 E.g., Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689 (1967); Park v. Chessin, 88 Misc. 2d 222, 387 N.Y.S.2d 204 (Sup. Ct. 1976), aff'd, 60 App. Div. 2d 80, 400 N.Y.S.2d 110 (1977). See Note, Park v. Chessin: The Continuing Judicial Development of the Theory of Wrongful Life, 4 Am. J. L. & Med. 211 (1978)Google Scholar.

79 See Note, supra note 78, at 226-28.

80 See Park v. Chessin, 60 App. Div. 2d 80, 400 N.Y.S.2d 110 (1977).

81 See Kass, supra note 5, at 28.

82 See Note, supra note 78, at 211.

83 See, e.g., Park v. Chessin, 60 App. Div. 2d 80, 400 N.Y.S.2d 110 (1977); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975).

84 Park v. Chessin, 88 Misc. 2d 222, 387 N.Y.S.2d 204 (Sup. Ct. 1976), aff'd 60 App. Div. 2d 80, 400 N.Y.S.2d 110 (1977).

85 See Kass, supra note 5, at 47.

86 Until the landmark 1946 case, Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946), it was widely held that because the unborn child was not an entity separate from its mother, it could not be owed a duty. See, e.g., Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884). The cases following Bonbrest “brought about the most spectacular abrupt reversal of a well settled rule in the whole history of the law of torts.” W. Prosser, supra note 70, § 55, at 336-37. Although the Bonbrest court held that a fetus must be viable in order to maintain an action, subsequent courts have extended the holding to allow an action to be brought at any time after conception. See Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960); Kelly v. Gregory, 282 App. Div. 542, 125 N.Y.S.2d 696 (1953).

87 E.g., Jorgensen v. Meade Johnson Laboratories Inc., 483 F.2d 237 (10th Cir. 1973); Renslow v. Mennonite Hosp., 67 Ill. 2d 348, 367 N.E.2d 1250 (1977); Park v. Chessin, 88 Misc. 2d 222, 387 N.Y.S.2d 204 (Sup. Ct. 1976), aff'd, 60 App. Div. 2d 80, 400 N.Y.S.2d 110 (1977).

88 See W. Prosser, supra note 70, § 75, at 494.

89 Id.

90 Id. (footnote omitted) (quoting Pound, The End of Law as Developed in Legal Rules and Doctrines, 27 Harv. L. Rev. 195, 233 (1914)CrossRefGoogle Scholar).

91 Once the use of IVF reaches an acceptable safety level, it will no longer be abnormally dangerous, and experimenters will not be held strictly liable. At that point a standard of care will have been established and a negligence action will be the appropriate remedy.

92 See Wilson, supra note 57, at 638.

93 One commentator has proposed the establishment of a federal fund to compensate the victims of nontherapeutic fetal research. Recovery would be limited to $500,000 for a negligently caused injury and $200,000 for a nonnegligently caused injury. Such a fund would have the advantages of strict liability without the danger of chilling valuable research. Id. at 639-41.

94 W. Prosser, supra note 71, § 79, at 521.

95 Id.