Debate over 'orphaned' embryos challenges Australia legislators

Australian legislators have been caught on the hop by a legal storm over two fertilized embryos being kept in a Melbourne medical center. The embryos, frozen in suspended animation since 1981, were said to have been produced by Mario and Elsa Rios, who later died in an air crash. Last week the case became more complicated when the attorney general of the state of Victoria alleged that an anonymous donor, not Mr. Rios, had fertilized the eggs that produced the embryos.

The American couple left an estate that some say is $7 million and others say is $1 million. Right-to-life groups in Australia say the embryos should be allowed to develop, be born, and inherit the money.

This scenario has caused considerable controversy in Australia. The Victorian state government, which exercises legal jurisdiction over the case, is awaiting a report from a commission of inquiry it established a year ago to advise it on all legal aspects of artificial fertilization.

The head of the inquiry, Prof. Louis Waller of Melbourne University, has said the committee has considered problems such as that raised in the present case, where the parents of an embryo have died before its implantation into the mother.

The committee had also considered what should be done when parents have separated or divorced after an embryo was conceived.

However Professor Waller would not reveal just what his committee expected to propose.

The state government of South Australia, where another program of artificial fertilization is under way, has not been as reticent as the Victorian government and has announced its policy, which it plans to make law in the state.

The South Austrialia minister for health, Dr. John Robert Cornwall, said that all couples seeking to enter his state's programs would have to sign a contract to set a limit for frozen embryo storage, beyond which the embryo would be destroyed.

The limit is to be 10 years, or sooner if the parents agree, die, or the marriage breaks down.

However, the doctors carrying out the procedures disagree over these guidelines.

The head of one artificial-fertilization clinic, Prof. Warren Jones, says the 10-year limit is too long. He thinks embryos should be kept for two years at most, then destroyed. ''Our thoughts are not well enough defined at this stage, '' he said.

The medical staff at biggest hospital involved in the program in South Australia, the Queen Elizabeth hospital, would rather keep the embryos and have them given to other couples, if they cease to be wanted by their donors.

The leader of this unit, Dr. John Kerin, said his team believed consideration should be given to embryo donation under certain circumstances.

''Where the couple have embryos stored, have completed their family successfully, or their marriage has dissolved, or death has occurred and there is informed consent, embryos could be made available to another couple who could not have children by any alternative method.

''We are just asking that consideration should be given to this view,'' he said.

In Melbourne, legal moves may be taken next week to try to establish guardianship over the embryos.

According to Margaret Tighe, the Victorian president of a right-to-life group , tion, the son of Mr. Rios, who lives in Los Angeles, is applying for guardianship of the embryos, which, if born, would become his half-brothers or sisters.

Australian courts, however, are unlikely to take a sympathetic attitude to him or the right-to-life organization, if either seeks to prevent destruction of the embryos, analysts here say.

In the absence of direct legislation, the chief justice of the High Court last year ruled that there could be no interference by people in the community with a woman's intention to have an abortion.

On the basis of that judgment, it is unlikely that courts would intervene to allow any claim to guardianship of the embryos, analsyts say.

Australian newspapers have generally called for national legislation to be passed along the lines proposed in the South Australia - which would mean destruction of the Rios's embryos.

Australian authorities have ensured that one aspect of the problem over the these embryos will never arise again - they have banned the use of the artificial facilities to overseas couples.