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Jeter v. Mayo Clinic Arizona10/27/2005
lopment, the heart begins to beat, and, by day 40, some body parts are recognizable in primitive form. At eight weeks, if it has continued to develop, most of the organ systems have appeared.
As noted above, the occurrence of each of these events depends on the ability of the organism to continue to develop. This is problematic because the percentage of pre-embryos that develop into a fetus and a live birth is not high, regardless whether it is developing in vivo or in vitro, but it is significantly lower for cryopreserved pre-embryos. The President's Council on Bioethics has estimated that, in 2001, only 32.8% of assisted reproductive technology fertilized organisms developed into a pregnancy if not cryopreserved. Only 27% led to live births. For cryopreserved pre-embryos, only 65% survived thawing and only 20.3% led to live births. Moreover, in 2001, 72% of all assisted reproductive technology transfers failed to lead to a birth. PCB at 29, 31-33 & 46.
Many pre-embryos are simply damaged during the treatment of the woman donor in preparing for the harvesting of eggs. Green at 56-59, 72-73. Some pre-embryos simply stop developing as early as the first two cell divisions. It is posited that the cessation of development may be a natural event to eliminate organisms when there is some inherent defect that would eventually stop further development into a fetus. Green at 9.
Our supreme court's decision in Summerfield clearly provided that present viability is a prerequisite to recovery under A.R.S. ยง 12-611. As shown by the above summary of our knowledge of embryonic development, one-to eight-cell cryopreserved pre-embryos stored in straws are not presently viable at that stage of the reproductive process and are incapable of developing into children via an extrauterine process. The cryopreserved pre-embryos are not then viable, as required by Summerfield, 144 Ariz. at 475, 698 P.2d at 720. Rather, they only have a remote potential to become viable. As such, it is best left to the Legislature, not to the courts, to determine whether "person" in this context should include cryopreserved pre-embryos.
2. The Current Discussion Over the Beginning of Life
We also reject the Jeters' invitation to more broadly define "person" in this context because such a decision would have important ramifications requiring the balancing of various issues and interests that are best left to the Legislature to consider.
The discussion over when society should consider human life to begin has existed since the at least the 4th Century B.C.E. Maienschein at 7-10. As Professor Maienschein explains, the nature of the disagreement has evolved as knowledge of embryonic development has advanced. Id. at 13-298. While the Jeters rely on several medical-legal texts to support their argument that human life begins at conception, those texts are only part of the discussion among scientists, philosophers, ethicists and the public as a whole on the issue of when society should consider life to begin. Most of these authors do not support the idea of expanding the concept to cryopreserved pre-embryos. To the extent any of them do, it is that very unsettled discussion that underscores the need for the Legislature, not the courts, to balance the various factors and policy concerns on this issue.
As explained by both Forsythe at 504-10 and Green at 22-25 and 63-66, there are various theories of what constitutes a "person." One current analysis is to examine various subjective attributes including the capacity to feel pain, experience pleasure, survive and react to the environment. In contrast, various authors taking a developmental perspective consider impl
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