Free Speech and the Law, Part III

GUEST: Harriet Pilpel
VTR: 5/9/1984

I’m Richard Heffner, your host on The Open Mind. At a recent symposium on the legal issues raised by the application of new scientific technologies, both to infant conception and infant survival, my guest today, Harriet Pilpel, the distinguished Planned Parenthood and civil liberties attorney, prepared to pun that, “If John Houseman and Smith Barney will permit, I’d like to start by saying with reference to most people that they make babies the old fashioned way: they have sex.” But then of course Mrs. Pilpel began to list the means human ingenuity has now devised to get around that old fashioned way. And she provided some brilliant but perplexing insights into the tangled web of legal and moral questions woven by artificial insemination, surrogate mothering, in vitro fertilization, embryo transfer, and what she still thinks of as somewhat less imminent prospects, the ones very much in the wings, cross-breeding with other species, forms of genetic engineering, maybe even cloning.
So we ought to deal with the impact of each of these technologies of course, but the first question I’d like to put to Mrs. Pilpel has to do with how we begin, how we establish social mechanisms in the first place to help us deal with the genies we’ve let out of the bottle. What do you think, Mrs. Pilpel? How do we go about it?

PILPEL: Well, strangely enough, we probably go about it by a sort of factual trial-and-error method. I’d like to refer for a moment to what’s happened with artificial insemination, which is the most well-established of these new forms of conception that you mentioned. When artificial insemination was first practiced I got calls from many physicians and others saying, “Is it legal?” Nobody knew whether it was legal or not. There were no statutes as to whether it was legal or not. And if there had been statutes they might very well have missed the real meaning of the process. I’m reminded, just parenthetically, of an Illinois law that provided with respect, I think, to artificial insemination that the doctor who did the inseminating was to be charged with the support and feeding and so forth of the resultant child, which made it a highly hazardous procedure for doctors. What has happened is that ethical physicians who have recognized the need of some of their patients to have artificial insemination, who really want to have a child and can’t have it the normal way, the regular way, the old fashioned way, went ahead and did it. And a practice grew up which became known to the American College of Obstetrics and Gynecology of the American Medical Association. And after a while a number of cities and states began enacting laws that reflected the ethical practice that had developed among physicians. Today, for example, there are at least 23 states which provide that in the case of artificial insemination of the wife with the husband’s written consent and with that written consent of the husband, with the consent of the wife, and the attestation of the doctor being filed with the health department, the procedure is legal, and the child is the child of the husband, not the child of the donor of the sperm.

HEFFNER: But I’m interested that you picked one case and instance that I think you would say, comparatively speaking, was a rather simple one, and an easier one to deal with. Do you think the same approach can be used successfully, in your estimation, with these other, more – I was going to use the word “bizarre”; I won’t – outlandish…?

PILPEL: Well, as a matter of fact, the dangers of premature statutes that you’re stuck with on the books is greater the more complicated the procedure. It is, after all, a medical procedure. I have talked to many physicians. For example, I’ve had discussions with Drs. Howard and Georgiana Jones who are in the Norfolk, Virginia installation where they’re doing in vitro fertilization. And they have developed rules of their own. For example, they will only perform in vitro sterilization (sic) with the sperm of the husband and the egg of the wife. Now, I don’t think that is what the law ought to provide eventually, but that’s a way to start. Then there are some doctors who say, “But here is a single woman who desperately wants to have a child and here is a donor who is willing, and so forth.” I think that if the legislation, if legislation was passed, it might go right by the real problem. And I personally believe that in this area, which is essentially covered by a right of privacy, as you know, a constitutional right of privacy which the Supreme Court has repeatedly said exists in matters relating to marriage, family and sex, the government should not intrude unduly. When it gets to a point that it’s pretty clear what the right method is and what the wrong method is, it’s all right, probably, for the government to ask.

HEFFNER: Well, I was going to ask you about that. You say rather blanketly that that’s a matter of privacy…

PILPEL: I did.

HEFFNER: …and that we’re not going to be in that situation. But is that so true? Are we not finding ourselves in the situation where the law is impinging upon medical practice?

PILPEL: Well, there’s no question that a lot of people feel that the law should keep its hands off medical practice and that it’s got too many hands on medical practice. However, the general criticism of the government is really the criticism, I’m afraid, of the present administration, which has in some ways intruded into this realm of privacy. As far as these special, new methods of conception are concerned, by and large the government has not intruded, neither the national, state, or local government.

HEFFNER: Do you think it will? Do you think there’s a likelihood as we become more deeply immersed in these experimental techniques that government will?

PILPEL: Well, I have to say yes, because I happen to know that in 20-odd states statutes, for example, have been introduced into the legislature to govern the practice of surrogate motherhood. As far as I know, none of them have passed. There have been challenges, legal challenges to surrogate motherhood in courts without any legislation. And in all of those, with the possible exception of one, the courts have considered that there is nothing illegal about the practice of surrogate motherhood. Do you think I ought to explain what surrogate motherhood is?

HEFFNER: Please do.

PILPEL: Surrogate motherhood is a term used to describe the following situation: The husband and wife are very anxious to have a child. The wife cannot conceive, or she cannot carry, or both. In such a case, a contract in some places is entered into between the couple and a woman who is willing to be artificially inseminated with the sperm of the husband. She carries the fetus through the pregnancy to birth, and when the child is born she does what is called surrendering her parental rights. The child, when she surrenders her parental rights, becomes obviously the child of the father. There’s nothing unusual about that. And ordinarily the mother may find it, the wife, to become the legal mother, may find it desirable to initiate an adoption proceeding which would go through without any question.

HEFFNER: You know, I’m interested that you said a moment ago that this is largely a matter of privacy.

PILPEL: Yeah, I think it is.

HEFFNER: Do you feel that – I won’t say the state of the national government – do you think that society has no large stake in how we handle these matters that go beyond the traditional approach to children?

PILPEL: Of course I don’t think that the state has no right to enter. What I’m saying is the state has no right to dictate in these areas. Where abuses exist, they certainly should be corrected. Where standards have evolved, they certainly can be adopted. But what I don’t think the state can do is to take the genie that’s come out of the bottle and tell it how it’s going to behave before it really understands the process. I mean, to take an example, what would you do with the situation where there is a fertilized egg in a test tube or Petrie dish and carelessly an attendant in a laboratory drops it on the floor and that’s the end of the fertilized egg? Now, if you believe that a fertilized egg is a human being, as some people believe, then what this man did was, at the very least, manslaughter. If you don’t believe so, maybe he’s guilty of negligence, maybe he’s not guilty of anything. I think for the government at this point to pass a statute saying what this fertilized egg in the test tube or the Petrie dish is would be to anticipate without sufficient knowledge how the science is going to develop in this respect.

HEFFNER: Yes, but nature still does abhor a vacuum, and my assumption would be – and you have to indicate whether I’m totally wrong or whether there’s something to this – that in the absence of permission or non-permission, in the absence of legislation, that what we have is a situation where, let’s say, the doctor is at risk because maybe what he is doing is going to be considered endangering not a species, but an individual. Are you so sure that we are safe without guidelines set down by society that does have some, admittedly have some stake?

PILPEL: Well, society has the stake, but it doesn’t have the knowledge, and it doesn’t have the information. The fact is that these are all very becoming kind of scientific developments. And as you know, scientists can’t work under rigorous rules prescribed by the government. The closest we have come, and it’s in line with what I said before about letting the professional practice develop, is to have committees in hospitals who can pass on some of these things. They would be committees of peers; they would be committees of doctors. There are now…required by the Department of Health and Human Services committees on experimentation with humans, as you probably know. And before an experiment can be conducted on a live person, a committee is convened and passes upon that experiment. I have been on such a committee, and I think they work extremely well. Now it has been suggested, for example, with reference to the difficult problem of what to do with very, very ill or malformed newborns, that there should be perhaps a committee in the hospital to whom the physician can refer and discuss before he puts himself in the position where he has done what you call taking a risk. It’s interesting to note that, so far as I know, not only have no physicians been prosecuted or sued civilly in these areas, but the one suit I know about occurred when the head of a hospital department in New York City was so upset about the idea of in vitro fertilization that he took a fertilized egg which was doing beautifully and destroyed it. And the woman whose egg it was and her husband recovered $50,000 for that. So that I think it is not realistic to think that if a physician is operating in the open, especially if you can have the support of your professional colleagues if it’s a hospital procedure, that it would not be better to wait. You seem to think that the fact that the state has an interest in these matters means that the state has the knowledge necessary to pass sensible laws, or that anyone either has now or ever will have that knowledge. There are many things that you have to leave to the medical profession, for example, which we do every day in connection with various kinds of diseases.

HEFFNER: Mrs. Pilpel, you’ve been a guest so many times over the years that by this time you know that my questions don’t indicate…

PILPEL: Don’t necessarily…Yes.

HEFFNER: …what I think.

PILPEL: Right.

HEFFNER: That they do indicate that there is a problem both ways.

PILPEL: There’s no question that the state has an interest in this and ought to have an interest in this. I think what happened in the artificial insemination field was cited by me not because it was the easiest, but because it’s the most well entrenched.

HEFFNER: Well, I want to go back though, and say now that you say of course there’s no question that the state has an interest. Why does the state have an interest if these are personal privacy matters about how one, whether one does it the old fashioned way of the new fashioned way, relates to one’s own offspring?

PILPEL: I suppose you could argue that, as was argued in the so-called Baby Doe case which came up in New York, that the state has an interest in any born individual, certainly. So as far as the treatment of any child that has been actually born, it has always been – not always – in the last couple of centuries it’s been recognized that the welfare of a born child is to be determined by the parents and the state. In other words, there are two groups that have assumed some responsibility for the welfare of children.

HEFFNER: So the personal aspect of it tends to slide off at some point?

PILPEL: Well, it slides off when another person is involved.

HEFFNER: Okay.

PILPEL: And much of the dispute on the abortion issue is whether another person is involved prior to the birth of a live human being.

HEFFNER: Do you take that position?

PILPEL: I think that there is no person in existence until a, if you want to call it a person, a human being, has been born alive. And that has been the standard criterion forever. I mean, until people recently started to try to challenge it. But there is no evidence really that there has ever been a legal system in which a person was deemed to exist prior to actual birth alive.

HEFFNER: but of course we now know so much more about what does happen in those biological moments before actual birth. And it shouldn’t surprise you that at this point in society’s existence we are beginning to think beyond and before human birth.

PILPEL: No, it doesn’t surprise me, but on this, I guess, I take the same position as the United States Supreme court did in the abortion cases, which is that the closer the embryo or fetus, or whatever you want to call it, comes to being born, the less freedom of decision and rights of privacy does the woman have. But for example, the opponents of free choice as to abortion take the position that a fertilized egg is a human being from the moment of conception, which means what I said before, that dropping a fertilized egg on the floor carelessly and killing it would be manslaughter, and which also presents almost intolerable problems in terms of the fact that there’s an enormous wastage of fertilized eggs that goes on with women all the time. One of the problems that has been raised in connection with in vitro fertilization is that normally in such a process more than one egg is fertilized to try to make sure that one of them will survive. So you may have five or six eggs that are fertilized, and the physicians may decide that they will insert back into the womb two or three of those, but they probably would never do five or six. And then the question becomes, what do you do with these little persons, if they’re persons? All they are is fertile eggs.

HEFFNER: What’s your answer?

PILPEL: I don’t think they are persons. I think they’re fertilized eggs, and I do not think that they as such have any rights.

HEFFNER: Tell me, let me go back if I might, Mrs. Pilpel, to this larger question of your quotation at the beginning of the comments you made at this recent symposium. You quoted John Kennedy as saying, “You can’t put the genie back into the bottle.” We’ve tried to do that when we’ve developed mechanisms of warfare, warfare against human survival. And we haven’t been that unsuccessful.

PILPEL: Well, we’ve tried to persuade people not to use the neutron nor atom bomb, is that what…

HEFFNER: Yes. It’s true. Chemical warfare.

PILPEL: Well, it’s true we’ve tried to persuade them not to use it, but it hasn’t done very much about producing it.

HEFFNER: No, I understand d that. But the fact is society, we have made that effort. Would you not feel it worthwhile to try to make that effort in terms of all of these rather extraordinary processes that seem to old fashioned people to step beyond the bounds of human comprehension?

PILPEL: I am absolutely amazed at that question. I can only say that I’ll assume it doesn’t represent your point of view.

HEFFNER: You’re becoming kinder again.

PILPEL: These new methods of contraception are a boon to mankind. I said that would put in a separate category cross species, which maybe we should spend a minute on, and cloning, about which I know very little but maybe we could spend a minute on it. But the others that we’re talking about, artificial insemination, surrogate mothers, in vitro fertilization, embryo transfer, which means a fertilized egg from the womb of one woman into the womb of another woman, they are miracles of the 20th century which enable people, couples who desperately want to have children to have children.

HEFFNER: They’re all miracles. And you draw a line. You say, well, these miracles that you take away from center stage, you want to consider cross-species fertilization some other way. You want to consider cloning some other way. They’re all miracles. You draw a line.

PILPEL: Well, I certainly draw a line when the purpose of the procedure is to enable people to bear healthy children. I think that I would be a one with many people whom I oppose on other grounds in saying that that is a worthwhile social objective. Now, one could argue, I suppose, if one were in China, that the purpose of having children brought into the world is devastating to the national good will or whatever the status, because they have many too many children; if they get many more the whole nation may go down. But we’re not China; we’re the United States. And we are not in a position in which people who desperately want to have children should not be assisted with the latest techniques of science to having children. Now, the purpose of cross-species is not to enable people without children, which is part of the right of privacy. I don’t know of any constitutional right that says that anybody has the right to cross a human with an ape. And I doubt very much whether one could be found. The thing that sort of terrorizes me about this is that it is reported that in that very China to which I referred there is a scientist experimenting with the cross-breeding of humans and apes, and I have read material which goes on at great length as to the advantages of the resultant offspring. That they would be very stupid so that you could give them all the menial tasks that normal people don’t want. That they’ll be very physically strong so they can carry things better than the rest of us, and so forth. I think once you differentiate between different groups of humans, you’re off the deep end from then on. And that I would oppose absolutely.

HEFFNER: I’m glad to know that you draw the line somewhere.

PILPEL: I certainly do.

HEFFNER: Now, you draw the line as a, not as a medical person, as a lawyer, as a moralist, an ethicist?

PILPEL: I don’t really regard myself as a moralist and ethicist. But you can’t be a lawyer in these areas without giving some – maybe in any area – without giving considerable thought to what the consequences are of what you’re in favor of and what you’re against. In the final analysis, I suppose, the law is society’s ethics at any particular time. However, it does lag behind society’s ethics sometimes, and then in some questions it advances them.

HEFFNER: And certainly it lags behind, by definition, scientific advances. I mean, when you spoke before about the committees in the universities that…

PILPEL: And in schools, medical schools.

HEFFNER: Well, not just in medical schools. All kinds of human experimentation are subject to…

PILPEL: Yeah, I guess that’ true. I just know about them in medical schools, but I guess they would be up there.

HEFFNER: But it is true on all other levels, even sociological experiments or investigation relating to human beings. I think you and I both know a good many scientists and social scientist who protest against that intrusion of the law upon their scientific work. Have you no concern about that? Have you no concern about the potential as we begin to develop the information you spoke about at the beginning of our discussion today, as we begin to develop enough information on which to formulate public policy? Aren’t you concerned that public policy will still dim the scientific endeavor?

PILPEL: No, because I think what is happening is this committee from of activity in which the scientists are judging the scientists…In other words, people who have the requisite information and background are the ones who are making the decisions. If there is something which an overwhelming majority of the country feels is immoral, there are many who would argue that at that point the state has to step in and prohibit it. Now, I don’t know how typical the prohibition experiment was, but presumably the majority of people in the country were in favor of no liquor. And so it was passed. And we’re still paying the price in terms of underworld and everything else. But I do feel, for example, if you’d like to take the subject of bigamy, that was a very difficult decision, I think, for the Supreme Court to make when it made it. But I guess the Supreme Court – I don’t remember the details of the decision – but I know they decided that the overwhelming majority of people in the United States, ethicists included, thought monogamy was the only socially acceptable form of marriage, and they therefore said bigamy was not.

HEFFNER: And they were certainly a very small number of people.

PILPEL: That’s right.

HEFFNER: …who would give opposition to that position.

PILPEL: That’s why I said when the overwhelming majority of the citizenry or the people in a country feel a certain way, then perhaps it is up to the government to do something if what they feel is not being implemented. But that’s dangerous because you could argue from that maybe the majority of Germans felt that the Jews were bad or the communists or something.

HEFFNER: Oh, but you don’t have to go that far away from our field today. Because I would ask you whether the majority of Americans, in your estimation, do approve of these non-traditional ways of going about having children. Now, that’s not an unfair question. Do you think that’s a majority of people in America?

PILPEL: Well, in the first place, I think the majority of people in America haven’t the remotest idea that these ways exist. They see in the newspaper that a little baby was born in London as the result of in vitro fertilization, and I don’t think it affects them very much one way or the other. It is significant to me that there have been no criminal prosecutions, at least that I know of, and there has been no real adverse comment on this. I think among people who know that these techniques exist there is almost unanimity in favor of them.

HEFFNER: What do you think the next steps will be in the next decade in this whole area of non-traditional birth?

PILPEL: Well, for one thing, it is possible that the entire problem of abortion will be lessened, because if it is possible to take a fertilized egg from one woman and put it into another woman, so long as there are women who don’t want to have a child that’s inside them and women who want desperately to have a child, you may be able to stem what some people have objected to in terms of abortion. I think that the overwhelming majority of people in this country are capable of having babies the old fashioned way, and I think they will continue to do so. I think it’s more pleasant and easier and certainly less expensive. These procedures, for example, in vitro fertilization, cost literally thousands and thousands of dollars.

HEFFNER: Now.

PILPEL: Now. But, you mean if they were…I don’t think anybody would resort to these if they had an alternative. And I base that really very firmly on my own experience and my own practice. I have been consulted by many people who want to use one or more of these methods. But in every single case they were almost at the end of their rope in terms of desperately wanting to be parents, not being able to find adoptable children, and feeling that somehow they are missing one of perhaps life’s greatest experiences.

HEFFNER: We’ve been talking about that greatest experience, and we’ve been talking about having children in one way or another. We just have a couple of minutes left. How do you relate this to the battle over keeping alive youngsters whose potential for life, a real quality life, is minimal?

PILPEL: You’re talking about something like the Baby Doe case?

HEFFNER: Yeah.

PILPEL: No one has really been able to give a satisfactory answer to that question. I can only tell you what my sort of tentative thinking, which is as far as I’ve been able to get, is. That is, I certainly think that no one has a right to determine that any human being shall die. That’s my opinion. That’s true of capital punishment, it’s true of war, it’s true of Baby Does. If, however, in order to remain alive extraordinary means are necessitated, and once being used will only prolong the life for a limited period of time, and perhaps what’s much worse, would prolong a painful life, then I think if the parents have consulted with their physician and if you have an appropriate hospital committee, a decision might be made to withhold that extraordinary assistance. But that’s all. Otherwise, everybody has a right to life.

HEFFNER: Do you think that that position is the position that will prevail?

PILPEL: I think so. And I want to correct what I just said. Everyone has a right to life, in my opinion. Every born person has a right to life. And in my opinion…

HEFFNER: Touchy, touchy subject, isn’t it?

PILPEL: …and in my opinion further, we should someday look at our Constitution and realize it doesn’t give anyone a right to life; it only prohibits the government from taking away our lives. But that’s a different subject. And that’s a subject that badly needs exploration.

HEFFNER: That is another subject, and it is badly in need of exploration. Maybe the next time you come back we’ll explore it. Thank you so much for joining me today on The Open Mind, Mrs. Pilpel.

PILPEL: It’s been a pleasure.

HEFFNER: And thanks too, to you in the audience. I hope that you too will join us here again on The Open Mind. Meanwhile, as an old friend used to say, “Good night, and good luck.”