The disturbing story of Carolyn and Sean Savage’s pregnancy was a hot topic in September, but it is barely remembered now. I am hoping that bioethicists and legal specialists are still cogitating over it, however, because the ethical and legal issues aren’t going away. They are probably just around the corner.

The Savages are the Ohio couple who were desperately trying to have another child, and thought they were going to be successful when an embryo was implanted into Carolyn’s womb. But in a  tragic “good news, bad news” moment, their doctor called with both an announcement and a confession: the procedure had worked and Carolyn was pregnant, but the doctors had mistakenly used the embryo of another couple, so the baby wasn’t “theirs.”

[I was reminded of a story told years at a legal conference by a pioneering female trial lawyer who practiced law in Arizona before it was a state. She said her strangest client was a woman who announced that she was pregnant, but “was pretty certain that the baby wasn’t hers.” The line got a big laugh, but the anecdote isn’t funny any more.]

The situation could have become an ethical and legal nightmare, but did not, because the Savages were extraordinarily ethical. Given the options by the doctor of aborting the fetus or handing the child over to the biological parents after carrying it to term, they chose the latter. The Savages had an emotional meeting with Shannon and Paul Morell and gave the baby boy Carolyn had carried for nine months to the parents who shared his DNA. Carolyn cannot have another procedure, so the Savages are seeking a surrogate mother. Shannon Morell was robbed of the experience of pregnancy and childbirth. Still, and amazingly, they couples didn’t end up in court.

The next set of couples might, however. The in vitro fertilization/ stored embryo/embryo implantation sequence is itself pregnant with wrenching ethical dilemmas, and the bioethics and legal professions have an obligation to consider all the possible scenarios arising from human error, and to establish rules and principles.
For example:

• What would be the right outcome if the only frozen embryo created by the Morells was the one mistakenly implanted, and the Savages decided to abort? Should the Morells have to agree to allow their biological off-spring to be destroyed? Could the Morells compel Carolyn to carry a child she didn’t want? Surrogate mothers give up the right to have abortions unless their lives are in danger. Why should this situation be different?

• Suppose doctors discovered that the baby was going to be born with a serious and crippling genetic defect, and the Savages still insisted that they would carry the child to term on moral and ethical grounds. Suppose the  Morells, however, do not want a damaged child, and say they couldn’t possibly raise him, emotionally or financially. They want “their” child aborted. Though the Savages object to abortion, they don’t want to keep someone else’s impaired baby. Now what?

• What would be the ethical and legal result if the Morells didn’t want any more children, the Savages refused to have an abortion on moral and ethical grounds, but didn’t want to raise a child that wasn’t biologically their own? If wouldn’t be fair to force either set of parents to raise a child they didn’t want to have, but it would be ethically and legally absurd to declare a child with two sets of parents an orphan.

• Suppose the mistake had been made at an earlier stage in the in vitro process, and the Savages discovered that the embryo was the result of Sean Savage’s sperm mistakenly being used to fertilize Shannon Morell’s egg? Who would be the “right” parents then?

In all of these scenarios, I see more than one defensible answer, and no satisfying ones.

How about you?

New technology usually catches both law and ethics by surprise, and too often the rules get established in trials and judge’s chambers rather than being the result of careful ethical analysis. Thanks to the Savages’ inherent decency and pure luck, many of the really difficult ethical conflicts lurking in fertilization technology haven’t arisen yet. They will, though, and it will be irresponsible not to have the ethical and legal issues settled by the time they do.

After all, we can see them coming.