Modern science and technology have provided an opportunity for infertile couples to have a child of their own through In Vitro Fertilization (IVF). As a result, there has been a legal debate between divorced couples, who before splitting had frozen fertilized embryos and in which one of the partners wishes to use the inseminated embryos to have a child ( Alghrani, 2005) . In IVF, an egg cell is removed from the mother and united with a sperm cell from the father, and after that, the embryo is cryogenically frozen ( Alghrani, 2005 ; Robertson, 2001). Subsequently, the frozen embryo can be defrosted months or even years later and implanted into a uterus and grows to become a normal child. This process entails removing egg cells from the mother, fertilizing, and freezing them in small groups. The frozen embryos are then defrosted and implanted separately (Nachtigall et al., 2008). Going by the current divorce rates, it is highly predictable that couples might divorce before the implantation procedure is carried out. As a result, frozen embryos are now included in amongst the property that divorce courts must deal with and find solutions. Due to the existing gap in the law as regard this phenomenon, different states, and courts have given different rulings. This paper will provide an outline of what various jurisdictions in the United States (U.S) are doing to resolve disputes involving frozen embryos in divorce proceedings.
In Tennessee, there was a case involving Junior Lewis Davis and former wife Mary Sue Davis. Davis wanted the frozen embryos he had made with Mary destroyed. Mary, on the other hand, initially wanted to use the embryos in an attempt to have a child by herself. She also intended to give the remaining embryos to a childless couple later. However, the judge emphasized that the embryos were fundamentally children, and therefore granted custody to Mary Sue Davis. However, Tennessee’s Court of Appeal reversed this. In doing this, the Supreme Court noted that there was a right not to procreate and the right to procreate. The ruling stated in part that "the party wishing to avoid procreation should prevail, assuming that the party has a reasonable possibility of achieving parenthood by means other than the use of the pre-embryos in question.”
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In a New York court, a divorcing couple had agreed in writing to donate the embryos that have not been used in the event of death or other unanticipated situations. But during the divorce procedure, the wife claimed for custody of the embryos. In 1998, the New York Court of Appeal found that consent forms between a fertility clinic and a couple should be sustained (Nachtigall, et al., 2008).
In California, a court ordered that frozen embryos a woman wanted to use despite her ex-husband's protests “thawed and discarded.”
Anne-Christine Massullo, a San Francisco Superior Court judge, issued a decision upholding the consent form delivered to the couple by the fertility clinic. In this case, Lee, a 46 woman, contended that the embryos signified her last chance of having a biological child because of her advanced age. Nevertheless, the judge ruled against her pleas.
On the other hand, a Pennsylvania Superior Court Judge presided over a case concerning a divorcing couple where the wife had been diagnosed with breast cancer. The court found that the woman’s only chance to achieve biological parenthood rested with the embryos. The decision made tipped in her favor and thus she was awarded custody.
In Illinois, an appellate court held that Dr. Karla Dunston, diagnosed with lymphoma, should be granted custody of frozen embryos she made with her then boyfriend, Jacob Szafranski. To the woman, the embryos also represented her last chance at having a biological child. The boyfriend, however, contends that he has a constitutional safeguard against forced reproduction.
Massachusetts is the only state that refuses to impose contracts. “As a matter of public policy,” the state’s high court wrote in a 2000 case, “we conclude that forced procreation is not an area agreeable to judicial implementation.” In this particular instance the couple signed a consent form that stated that if they split-up, the woman obtains control of the pre-embryos. The Massachusetts Supreme Judicial Court noted that the state would not force the man to become a parent contrary to his will (Robertson, 2001).
A Washington state court supported a married couple’s agreement in ordering pre-embryos they had produced using a donor’s eggs and the spouse’s sperm to be defrosted as they had not been used in five years.
In Texas and Oregon, a ruling involving frozen embryos agreed with the divorcing couple’s consent agreement and had the embryos thawed.
In Pennsylvania, a married couple made frozen embryos after the wife was diagnosed with breast cancer. After the husband had filed for an annulment, the woman wanted to have the embryos embedded. Since there was no agreement in place, the court ruled that the woman’s inability to have any other biological children was the determining factor.
In Iowa, a married couple signed an informed consent stating that they both would need to sign off on the use of the embryos. The court adopted the rule that both parties must approve to use the embryos at the time of implantation.
From the outlined examples in different jurisdictions, it is evident that the courts have adopted three different theories on the legal status of frozen embryos. These are as follows;
Some courts have decided to give frozen embryos all the legal rights of humans because they are biologically flourishing and have the right to be born.
Other courts have acknowledged frozen embryos as possessions, settling the row that frozen embryos are akin to human tissue in their legal status as material goods.
Thirdly, other courts hold the position that embryos require some form of respect and status. This is not like people , but somewhat more than just mere possessions (Sieck, 1998).
Assisted reproduction is mostly offered to heterosexual couples. However, there are a growing number of applications in different relationships and groups. These include singles, lesbians, gays and more recently transsexual men and women. The emerging scenarios result in legal and ethical issues regarding access to assisted reproduction. For instance, until recently, these non-standard unions were considered to be psychiatric conditions, commonly referred to as gender identity disorders. Subsequently, the ethical issues arising from use of IVF by such groups include the following;
Respect for autonomy: The right to reproduce has been traditionally and exclusively given to heterosexual couples. However, with the notion of equal citizenship, there has been an increased view that gays and lesbians share the same right to reproduce as other individuals. However granting the right to reproduce to the non-standard groupings and relationships is still vigorously contested in some countries. The Supreme Court in the U.S emphasizes that inability to reproduce should be considered a health-impairing disability. This is according to the Americans with Disabilities Act. Thus, the court argues that under the universal health care, infertility and disability should be viewed as needing medicine. This is because reproduction and its surrounding dynamics are crucial to advancing the life process. Subsequently, while IVF is an expensive venture, only a few states require insurers to cover for IVF. The majority, however, currently exclude same-sex couples and the unmarried. Instead of “infertile ,” the gays, lesbians, and singles are referred to as “ dysfertile ” in a bid to emphasize that their inability to reproduce is primarily social. Due to the low scope of IVF coverage in the U.S, there are low levels of the practice amongst same-sex couples, unmarried couples, and single mothers.
Beneficence and non-maleficence: The risks to the future child raise other ethical issues concerning the use of IVF by the non-standard relationships. In this case, the emphasis is placed on the psychological development of the child and possible detrimental effects. It’s assumed that children need a mother to develop normally and hence this presents a challenge for the gay couples wishing to raise a child. On the other hand, the psychological risk of a child growing up with a lesbian and transsexual couple presents a challenge and other ethical considerations. For instance, religious critique points to societal harm, while opposing assisted reproduction in such unions.
In the U.S, most reproduction and fertility-related issues are handled by the state law, not the federal law. However, every state has engaged its tactics in response to scientific developments in baby-making as well as the growing interest in surrogacy and non-standard parenting choices. Fertility rights advocates and fertility experts have also raised concern with laws that label embryos as people. This is because to some extent they consider the legislation as being impediments to fertility clinics.
The security and privacy rules concerning the Health Insurance Portability and Accountability Act (HIPAA), alongside other related state laws are essential with relation to privacy, confidentiality of communications and medical records of all medical procedures and services, and in this case all matters concerning assisted fertility. The new HIPAA revisions directly affect all parties involved seeking to access assisted reproduction. Upon request by the relevant state bodies, the federal law requires disclosure of judicial or administrative proceedings. However, all information should be kept private and confidential until such a legal requirement necessitates sharing of the information. In this regard, there have been cases where fertility centers have been asked to take down baby photos in their offices. This is because displaying any photos without explicit authorization is a violation of the HIPAA.
The legal intricacies associated with the field of procreative technologies are plentiful. Furthermore, there is an increase in the number of partners involved in the process of reproduction. As a result, there are many openings for injurious factors that have to be considered during the decision-making process. The introduction of new scientific procedures like IVF and its effect on traditional concepts of family planning has complicated the process of divorce in American courts. This method adds into divorce proceedings the issue of whether one partner's right to procreate and the frozen embryo's right to life overshadow the other partner's non-procreative and confidentiality reasons ( Alghrani, 2005). Individual rights once again become a confrontational subject in divorce courts (Gracia & Crockin, 2016). In conclusion, the emergence of IVF has left family law clambering to fill the gaps in prevailing jurisprudence to decide the constitutional, lawful, and common law rights of persons when making judgments concerning the use of IVF.
References
Alghrani, A. (2005). Deciding the fate of frozen embryos. Medical Law Review 13 (2), 244-256.
Gracia, C. R., & Crockin, S. L. (2016). Legal battles over embryos after in vitro fertilization: is there a way to avoid them? JAMA Oncology , 2 (2), 182-184.
Nachtigall, R., MacDougall, K., Harrington, J., & Duff, J. (2008). The disposition decision: how couples who have undergone IVF decide what to do with surplus frozen embryos. Fertility and Sterility 90 , S9.
Robertson, J. A. (2001). Precommitment Strategies for Disposition of Frozen Embryos. Emory LJ , 50 , 989.
Sieck, W. A. (1998). In Vitro Fertilization and the Right to Procreate: The Right to No. University of Pennsylvania law review , 147 (2), 435-485.
