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June 27, 1984, Page 00012The New York Times Archives

A married couple, unable to bear a child by natural means, produce three test-tube embryos through the process of in vitro fertilization. When implanted in the wife’s womb, the first embryo fails. The two others are frozen for future use, but before they can be implanted the husband and wife are killed in a plane crash. Legal questions abound. Can the orphan embryos be destroyed, or have they become frozen souls with the panoply of rights accorded human beings? Must they be implanted in another woman and, if possible, carried to term? If they are born, who are their legal parents, and what are their inheritance rights?

Not too long ago this would have seemed as farfetched as one of those hypothetical, preposterous law school sagas concocted by law professors for final examinations. But a year after a Los Angeles couple, Mario and Elsa Rios, were killed in a plane crash in Chile, the two human embryos they left behind remain immersed in liquid nitrogen in the Queen Victoria Medical Center in Melbourne, Australia.

The status of those embryos, along with 200 others frozen in the same metal canister, remains uncertain pending the release next month of a report prepared by an Australian Government committee. The same questions confront scientists, lawyers and theologians in the United States and other places where embryos are frozen and stored. Search for Guidance

While doctors have been discussing the ethics of in vitro fertilization for several years, the Rios case appears to have caught the law unawares. It illustrates how the law reacts to, rather than anticipates, technological change, scouring the past for principles that, while archaic, may nonetheless provide some guidance.

It demonstrates, to some degree, why Fred Rodell of Yale Law School once compared the law to the killy- loo bird, a creature he said ”insisted on flying backward because it didn’t care where it was going but was mightily interested in where it had been.”

Lori B. Andrews, a lawyer with the American Bar Foundation who is the author of a book on the law and infertility treatments, said, ”We’re approaching space-age technology with Model-T statutes and cases.”

To delineate the legal rights of embryos, scholars turn first to the abortion rulings of the United States Supreme Court, particularly the 1973 abortion rights case of Roe v. Wade. But these cases, according to Alexander Capron, professor of law, ethics, and public policy at Georgetown Law Center, can be construed in different ways.

In upholding a woman’s right to an abortion, Mr. Capron explained, the High Court ruled in the Roe case that the fetus is not a human being and does not have a person’s full range of constitutional protections. Under this reasoning the rights of an embryo, which has attained an even more rudimentary form of development, would be more minimal still. Conclusions of Panel

A report prepared by a Federal medical ethics advisory board in 1979, which Miss Andrews describes as ”the closest thing we have to a national policy on the matter,” made the same point. It concluded that while the human embryo was ”entitled to profound respect,” that respect ”does not necessarily encompass the full legal and moral rights attributed to persons.”

In recent years, however, courts and legislatures have granted fetuses some rights. Twenty-three states bar fetal research, some of them with statutes arguably broad enough to bar in vitro fertilization altogether. In addition, courts have appointed guardians to protect a fetus where a mother’s conduct places it in danger.

This growing sensitivity to fetal rights is likely to weigh still more heavily in the Rios case than in litigation over abortion. Because Mrs. Rios is dead, a court need not balance her privacy rights against the rights of the fetus, as the High Court did in the Roe case.

”To put it mildly, the law is ambiguous as to the legal and moral status of these entities,” Mr. Capron said.

Doctors in Australia say that, given the state of the technology in 1981, the likelihood that the embryos would survive if implanted in another woman is small. But were one or more to reach birth, another legal problem would arise: inheritance rights. The issues are more vexing still because Mr. Rios, a millionaire property developer, left no will, and another man, unidentified, apparently donated the sperm. Laws on Infertility Treatments

Here, however, legal principles applied to other infertility treatments may offer some guidance. Most of the 24 states with laws governing aspects of artificial insemination provide that if an infertile husband agrees to the artificial insemination of his wife, the husband and not the male donor is presumed to be the legal father of the child. Thus, if Mr. Rios’s consent could be documented, whatever claims a future child had on his estate would not necessarily be extinguished.

At the same time, the common law has long presumed that the woman giving birth to a child is, legally, its mother. It is for this reason that courts have required couples to follow customary adoption proceedings when claiming children born from surrogate mothers. Under this reasoning, any babies that develop from the two Australian embryos would belong to the carrier and her husband and would have no further claims on the Rios estate.