In the last week or so I’ve been following an interesting case involving a conflict over entitlement to two frozen embryos. You can read about it here and here. The latter story suggests that the case is headed to mediation which means this might be the last we hear of it, so I figured I’d comment now.
Edward and Kerry Lambert, who live in California, created some embryos. (I presume their primary purpose was their own ART effort.) The Lamberts view the embryos as living human children and so would not want to simply destroy eccess embryos.
In February 2009 they entered into an agreement with Jennifer and William McLaughlin of Kirkwood, Missouri. The McLaughlin’s shared the Lamberts understanding of the embryos as living children. At the time the Lamberts had five adopted children, but they wanted to have more children. As a result of the agreement, four frozen embryos were given to the McLaughlins. Two were transferred to Jennifer McLaughlin and she gave birth to twins.
The problem is the couples do not agree on the disposition of the two remaining embryos. The McLaughlins would like to transfer them in the hopes that Jennifer will give birth to two more children. The Lamberts want them back, but it is not entirely clear to me what the Lamberts wish to do with them.
At the core of the case lies the agreement between the Lamberts and the McLaughlins. The press suggests it is an embryo adoption agreement. This would be consistent with the shared view of all the involved parties that the embryos are children.
But the agreement apparently contains a provision that if the embryos were not used within a year, they would be returned to the Lamberts. This is the basis on which the Lamberts want the two remaining embryos returned to them. Yet this provision seems quite inconsistent with the view that the embryos are children. As has been much discussed here recently, adoption is permanent. It seems to me that if you assert that Lamberts allowed the McLaughlins to adopt their four children, than the Lamberts cannot demand the return of two of them.
In fact, even if the parties all agree that this is an adoption, it really isn’t an adoption in any legal sense. Adoption is a specific legal procedure regulated by the state. In order to complete an adoption, specific steps must be taken and ultimately, court approval must be obtained. I’ve written a bit about embryo adoption in the past. To assert that the transaction is an embryo adoption is both a political and a moral statement–it’s an assertion that the embryos are children–but it’s not a legally accurate statement.
The parties here took the matter to court: To two different courts, actually, one in Missouri and one in California. It doesn’t seem to me that the courts can consider this as an adoption, since it clearly doesn’t meet the legal form. Thus they must, I think, treat this as a contract matter–a dispute about the agreement between the parties. This treats the frozen embryos as property, of course, which is undesirable from the view of the parties. And perhaps this in part explains why the parties have agreed to attempt to resolve the dispute via mediation. (A mediator might take into account the shared view that the embryos are children and offer a decision based on her/his consideration of the best interests of the embryos, I suppose.)
I think the agreement at issue here is fundamentally inconsistent with an understanding of the embryos as children. And generally speaking, there are only two alternatives in law–if they are not children then they must be property. If they are property, then the agreement could be enforced as made, though there could be any number of grounds on which the McLaughlins could contest enforcement.