Of gametes and guardians: the impropriety of appointing guardians ad litem for fetuses and embryos.

Recent advances in medical technology have caused some COtntnentators and courts to perceive fetuses and embryos as separate entities, with rights independent of the women who carry them. Conduct of pregnant women that has been perceived to conflict with the interests of the fetuses they carry has been called into question. In some cases, courts have been forced to determine the juridical status of fetuses and embryos; in others, courts have appointed guardians ad litem to represent the "best interests" of these entities. This Article maintains that appointing guardians ad litem for fetuses and embryos is inappropriate. Fetuses and embryos are not accorded the same status as existing persons under constitutional law. Protecting such entities, which are completely dependent on the women who carry them, violates the privacy rights of pregnant women. Moreover, existing child abuse legislation, under the auspices of which some courts have appointed guardians ad litem for fetuses, is not designed to operate in the in utero context. The "geography of pregnancy" suggests that fetal interests should not be used to restrict the right of pregnant women to enjoy privacy and bodily autonomy. Legal conflicts between a woman and the fetus she carries were relatively rare before the advent of sophisticated medical technology.1 Recent scientific advances, however, now allow us to observe the fetus in utero, to test amniotic fluid and chorionic villus to determine genetic defects and, in some cases, to provide therapy when problems are discovered. At the same time, researchers have identified and documented the dangers of drinking alcohol, smoking cigarettes and using drugs during pregnancy. Physicians are now also able to assist infertile couples through the use of in vitro fertilization, gamete intrafallopian transfer, zygote intrafallopian transfer and embryo freezing. These new technologies permit the creation of extra-uterine embryos. • Associate Professor of Law, Widener University School of Law. B.A. 1980 Tufts University, J.D. 1984, Georgetown University; L.L.M. 1986, Temple University. My thanks to Bob Hayman, Bruce Kogan, Jon Krinick and Lynn Patrow for their comments on drafts of this Article and to my research assistants past and present for their efforts: Laura Jean Hansen, Eileen Grena. Maureen McGlynn, Chris Cosgrove and Ellen McHenry. In addition, many \h~ \0 L~ \»a1tl:OW and the ACLU Re\lroductive Freedmn Project for \lutting me in touch with ACLU branches coping with these cases and for keeping me informed of developtnents in this area. I would also like to thank Lena Mooney, Rosemary Crosley and Velma Mastro for their invaluable assistance. I dedicate this Article to those who inspired me to write it, Jon Krinick and Layla Clare Goldnick. 1. Efforts to control women because their actions might affect the fetus predate the expansion of medical technology. See e.g., Muller v. Oregon, 208 U.S. 412 (1908). The advent of sophisticated medical technology has dramatized the potential for conflict.