Who owns a frozen embryo?

Last updated on: September 18, 2013 at 8:56 am by Jane the Actuary

Who owns a frozen embryo? 2013-09-18T08:56:00-06:00 Jane the Actuary

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So I promised myself that I wasn’t going to blog until after work today, but very interesting article in the Tribune (outside the paywall) today: “Former Couple Take Fight over Frozen Embryos to Court.”

Now, look, I’m pro-life. I find the idea of creating embryos in an IVF process, only to cryo-freeze them in perpetuity, or flush them down the drain, or donate them to science to be destroyed in the research process, to be disturbing. And once they have been created, their status should have a certain “best interest of the child” element — in which their best interest is served by any action that moves them forward to being implanted and being allowed to, well, live.

But that’s not where we are, legally. Unborn children of any kind have more of a property status. For the most part, they’re treated as the expectant mother’s property, and it’s her decision to do with her property what she wishes, whether it’s to continue to gestate until that point when the “property” achieves legal personhood and is no longer her property (though, let’s face it, stories of infanticide and child abuse tend to have a degree to which the mother considers the child as property that she owns and can treat/dispose of as she wishes), or to get an abortion to discard of her property.

In cases such as this, I would ordinarily expect the legal decision to be made on the basis of property rights. Who owns the embryos? What do the contracts underlying their creation say about the situation? If there’s no clear ownership specified in the contracts, what does common law say about dividing jointly-owned property? Does he own half, and she own half, so that if there are four vials, she gets to take two home with her?

At the same time, the legal justification for abortion is generally that a woman shouldn’t be obliged to bear a child against her will, and the rationale for not according men similar “rights” is that, to force a woman to get an abortion at the behest of the father is a violation of her bodily integrity. Here it truly does seem that the tables are turned. If the child/embryo in question has no “right to life” and it’s purely about the desires of the two adults in question, how can her desire to bear a child override his desire not to be a father? — and yet, according to this article, past court cases have produced conflicting rulings.

In a similar case, a Pennsylvania appeals court last year awarded frozen embryos to a woman who hoped to give birth over the objection of her ex-husband, who wanted the embryos destroyed. Like Dunston, the ex-wife was believed to be infertile because of cancer treatments. The decision upheld the trial court ruling that the ex-wife’s desire to have biological children outweighed the ex-husband’s disinterest in becoming a father. But high courts in other states have determined that parenthood cannot be thrust on an unwilling party. The Tennessee Supreme Court, for example, decided in 1992 that fatherhood would be a greater burden for the ex-husband than destroying the embryos would be for his ex-wife.

Of course, this all ties in with the anti-adoption movement from a couple weeks ago, as well as the whole debate on men’s “reproductive rights” that was, I believe, the last straw before Ann Althouse first ended, then began to moderate comments, back in July.

Because once the unborn child has no rights, you get into a very murky place indeed.

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