NCER Notes
In a currently common scenario, a husband and wife create and freeze human embryos with the stipulation that should their marriage end, any remaining embryos will be destroyed. Fast forward, the couples marriage ends in divorce, but one decides they want to keep said remaining embryos. Now the state Supreme Court will decide whose “property” the embryos are, and what shall be their “fate”: to remain frozen or to be destroyed. This exact story is being played out in all 50 states, and exemplifies how In Vitro Fertilization (IVF) can require the abuse and destruction of human life.
By NICOLE LEONARD • MAY 15, 2019
A Connecticut couple once decided to create and cryogenically freeze human embryos so that they could expand their family. But then their marriage ended, and a question remained: what should happen to a remaining frozen embryo?
Advancements in medical technology have afforded more people the opportunity to freeze sperm, eggs or embryos to plan for future children—but when relationships go sour, some people enter into legal battles over those fertility preservation decisions, and the law hasn’t quite caught up.
“A frozen embryo is a novel thing to be part of the components of a marriage and things that people have acquired or built together, and so courts have had to grapple with how to best handle that,” said Katherine Kraschel, executive director of the Solomon Center for Health Law and Policy at Yale University.
Some of the highest courts in the country are hearing arguments on how to classify a frozen embryo and who should get one in a divorce. It’s not a simple task—many states lack a legal precedent on how these cases should be handled, while advocates continue to disagree on protections that should be afforded to these embryos.
Connecticut has taken on one of the most recent cases—Supreme Court justices last month heard from attorneys each representing Timothy Goodwin and Jennifer Bilbao, who have divorced and are in dispute over an embryo created while they were married.
Goodwin wants the embryo preserved, despite having signed a contract agreement with his then-wife seven years ago that instructed any remaining embryos be destroyed in the event of divorce. Now, he’s changed his mind.
His attorney, Joseph Secola, argued before the justices that his client deserved the right to change his mind and that a frozen human embryo should be considered as something more than property.
“Is it a person? Is it property? Is it something in between? The lower courts and different states have been all over the place,” Secola said. “If there’s a disagreement, why can’t the human embryo be given to the parent that wants to preserve its life and the decisions go from there?”
Meanwhile, his ex-wife, Bilbao, wants to stick to their original agreement. She stated through her attorneys that she did not wish to have any more children with Goodwin. Her attorney, Scott Garosshen, said if contracts were upheld in court, “that would nip the vast majority of these future disputes in the bud so that we’re not back here.”
Contracts are often used at fertility treatment centers to help couples decide on what would happen in future situations, like divorce or death. Kraschel, who specializes in reproductive law, says they also help protect the fertility centers, but they don’t always work as intended.
“When patients are signing a form with their medical provider, most of the time, they’re not necessarily contemplating these very profound issues of family formation and identity when we’re thinking about people who object to their genetic material being used to create a human perhaps without their consent,” she said.
The validity of these contracts in embryo possession cases has varied. In New York and California, courts have chosen to enforce contract agreements. In Iowa and Massachusetts, couples ultimately have to come to a mutual agreement while an embryo remains frozen. And in Tennessee and Pennsylvania, courts have decided to use a balancing test, which weighs the interests of both parents.
But what’s making these cases more complicated, Kraschel said, is disagreement on how to treat a frozen human embryo.
“Is the embryo property or is it more like a child in which we think about a custody arrangement?”
Defining where embryos fall on the scale of personhood, if they do at all, has been difficult, even for bioethicists like Dr. Louise King.
“There’s no way to say for sure when life truly begins and we’re not going to probably have a definitive way of stating that anytime soon,” she said.
King is the director of reproductive bioethics at Harvard Medical School’s Center for Bioethics. She’s also a practicing surgeon at Beth Israel Deaconess Medical Center in Boston and she used to be a lawyer. King said scientists use bioethics to determine when to draw the line in experimentation, especially involving embryonic stem cells, but even that’s a grey area.
So for frozen embryos, which are also referred to as pre-embryos—given that they only grow for 4 to 5 days until frozen—King said it’s actually more of a philosophical debate, not one of science, despite arguments claiming otherwise.
“If you believe that life begins at conception, then you will see an embryo of any stage as being a fully human being,” she said, “but of course if that’s true, then you’ve afforded moral status to an entity that doesn’t have any other criteria except for being genetically related to other human beings.”
Kraschel and other experts say these kinds of cases are attempts to chip away at, if not reverse, the Roe vs. Wade decision, which protects abortion rights.
Efforts to get a frozen embryo possession case before the U.S. Supreme Court have so far failed — the court declined to hear a Colorado embryo case in April — but fetal heartbeat and fetal person-hood laws in other states continue to challenge the landmark decision.
And King said even though science and bioethics don’t support giving frozen human embryos a status deserving of full human rights, many experts in law, medicine and bioethics agree that they do fall into a special category.
“This is clearly an entity that deserves our consideration and protection above, for example, a skin cell,” she said. “It’s not just a cell, but it’s not also an infant, and it’s not also potentially an fetus right before it’s born, so it’s something different.”
But until there’s more of a consensus on how to treat frozen embryos, states are left to navigate the complexity of these cases on their own.