Who Gets the Embryos?

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.


24 responses to “Who Gets the Embryos?

  1. Wow. What on earth are we as human beings playing with? I can typically look at any situation without moral judgement, because my own morals are questionable and shaky at best. I still have no judgement per say but something in the back of my mind says that we as a species have opened a can of exploding snakes. I hope they are all prepared to explain themselves to the children born of this odd union.

  2. There is no legal construct for embryo adoption. This term was created for and by the opponents of Roe.

    The fact that the media continually uses the term is merely journalistic sloppiness and an attempt to make a contract lawsuit sexy for readership.

  3. I agree that the term “embryo adoption” is one that contains the idea that the embryos are people rather than property, and hence it is tied to a view of when life begins, etc.

    What interests me is that this story seems to illustrate how very hard it is to be consistent in your views. If you believe that the embryos are children then, it seems to me, the only proper way to hand them off is via adoption. But if it is adoption, you cannot demand them back. Neither can you privately direct them to particular people. Adoption is permanant, requires some sort of state oversight and ends with a court order.

    In a way what is called embryo adoption works precisely because the law does not view embryos as children. Thus, the Lamberts are free to enter into a contract that turns the embryos (legally property) over to the McLaughlins. When two are transferred and Mrs. McLaughlin gives birth, she and her husband become parents by operation of ordinary legal rules –a woman who gives birth is a mother and her husband is a father. The other two embryos remain property and might be subject to a condition of the contract that they be returned if not used.

  4. Embryos are property and therefore the terms of the contract should hold- until the child is born. Once born, all previous agreements should be declared null and void, and standard custody law should be applied

    Whatever that is. 😉

  5. Julie : I think your analysis is dead on with the current case law and expert opinions.

    I find the more experienced ART attorneys will set out contingencies for future use in the donation agreement. I am troubled, however, if future use includes returning embryos to the donor.

    I believe that such a term can, in certain circumstances, weaken the donation as to the embryos which resulted in children. And that may lead to reckless litigation which could harm the parent-child relationship.

  6. Maybe the middle ground is that the McLaughlins are more like “foster parents” to the embryos until the embryos become actual children and then they turn into “legal parents” upon birth. But any un-used embryos are returned to the biological parents. Sounds way too complicated.

    • I think part of the problem here is that there are two exclusive categories–the embryos can thought of as children, in which case you could think of this as foster care of sorts, I suppose, but it doesn’t really work the way foster care does. Alternatively the embryos can be property, in which case I suppose it’s a sort of bailment. How you think of the embryos ought to determine the appropriate legal procedures for transferring them from one person to another.

      I think one might suggest we need another category–not property, not children. But none of the frozen embryo cases I know of (and there are actually quite a few) really imagine a third category.

  7. “But if it is adoption, you cannot demand them back. Neither can you privately direct them to particular people.”

    I thought children were privately directed at times to particular people in adoption.

    • Yes and no. (Isn’t that just like a law professor.)

      There are many open adoptions where the soon-to-be adoptive parents are selected by the pregnant woman and her partner. But the adoptive parents must undergo some assessment that is mandated by the state (like a home study) which includes background checks and things like that. And the actual adoption is reviewed (even if in a perfunctory manner) by a judge. So it’s not a purely private transaction.

      Embryo adoptions, though they are called adoptions, don’t have any of the trappings of adoptions. There are no home studies and no judicial review. I’m not sure there is anything that legally distinguishes them from the sale of property.

      • Ahh ok got it. Thanks.

        • Maybe embryos should have the trappings of adoption if the vendor and buyer are deeming them living children.

          • I suppose private individuals who share this view could develop a process that more convincingly mimics adoption. But they cannot access the existing formal adoption procedures without agreement by the state that the embryos are children. And that, of course, is a politically charged matter. This explains why no state has actually extended adoption procedures to embryos, I think. The agreement in this particular instance doesn’t seem to me to even look very much like adoption–it seems much more like some sort of conditional sale.

  8. You can’t give a child up for adoption prior to birth.

    Art kind of messes with that law in fact it skirts it which is why I think alot of these cases come up. Its all shady under the table transfers. Grey market not documented by the court. Bound to cause problems.

  9. In the case of traditional adoption, the adoption isn’t finalized until after the baby is born. Perhaps in “embryo adoption” the process isn’t finalized until the embryo is transferred into the “adoptive mother”. The contract had a one year clause that allowed the Lambert’s to revoke the agreement. In traditional adoption, the birth family can place one baby in a home and if they get pregnant again, they can decide to place a subsequent child in a different adoptive home. Even if this is viewed as an adoption, shouldn’t the Lambert’s have a right to place remaining embryos in a different home, esp. if they have concerns re. McLaughlin. Whether viewed as property or as children, with the contract stating the Mclaughlins had one year to utilize the embryos, the year is up. Control should return to the Lamberts.

  10. Where some of the problems here lies is that there is an option where couples can “donate” embryos (usually through a fertility clinic) and there is also a different process where couples can place embryos for adoption, through an accredited adoption agency. They are different processes. I went through the adoption process and it was handled exactly like a domestic adoption, included a legally binding adoption contract. Ideally, these two processes will be streamlined but again, the laws, at this point, have not yet caught up to the science.

    I am, however, eternally grateful for this unique opportunity to become a mother. We have a great relationship with the genetic family and we look forward to having them be a part of our extended family for years to come.

    • I’m not sure what you mean by a legally binding adoption contract. A pregnant woman might contract to place her child with a person or couple before giving birth, but that contract cannot be enforced. One of the notable features of adoption is that (at least as far as I know) there’s always a period of time after birth during which the woman who gave birth can change her mind and keep the child. I’m not sure I’d call that legally binding.

  11. “One of the notable features of adoption is that (at least as far as I know) there’s always a period of time after birth during which the woman who gave birth can change her mind and keep the child. I’m not sure I’d call that legally binding.”

    True. But embryo adoption is different. I will be the “birth mother” in my case. I will have given birth to the baby (babies). The donating couples are called the “genetic parents” and will am called the “birth mother.” Could you foresee the court forcing a mother who carried and gave birth to a child relinquishing the child to the “genetic” parents unless she was unfit or initially agreed to be a surrogate?

    You make a good point, though and these are clearly all things that must be considered by people who are considering embryo adoption and by the legislature.

    • funnylittlepollywogs
      Congratulations on starting a family.
      I wanted to reply to your statement
      “Could you foresee the court forcing a mother who carried and gave birth to a child relinquishing the child to the “genetic” parents unless she was unfit or initially agreed to be a surrogate?”
      Yes, I absolutely can and it has happened. There is a notable case where I live in San Francisco where a woman conceived her baby with an anonymous man through a fertility clinic. She agreed to have her baby implanted in the womb of her lesbian partner because her partner was steril and would otherwise never get to experience pregnancy or child birth. She intended to raise her child together with her partner after her partner delivered. Their relationship deteriorated and then her child was taken by her partner who claimed rights as the child’s birth mother. Now of course this is horrid and terribly unfair, but she had signed a donor form at the begining of the process that said she’d give up rights to her own child. Now, this was INCREDIBLY STUPID OF HER. Nonetheless, her partner had a legal right based on her own stupid waiver of rights. Luckily she is a lawyer herself, and she finally has her child back. The big flaw with the contracts and waivers for embryo’s is that it does occur prior to the child’s birth and the law does not recognize contracts to give up babies prior to birth in regular adoptions, it seems that this is being overlooked and is getting folks into hot water.

      Food for thought anyway

      You make a good point, though and these are clearly all things that must be considered by people who are considering embryo adoption and by the legislature.

      • The case you describe might be KM v. EG. In that case, one woman donated an egg which was fertized with donor sperm and trasferred to the woman’s partner. The woman who provided the egg signed the standard form the clinic used for those providing eggds, which states that she would not be a parent. They ended up splitting up and there was lengthy litigation. In the end, the California Supreme Court both women were parents. It’s a 2005 CA Supreme Court opinion.

        • marilynn huff

          Thank you Julie. I really did not know the specifics. I’m also pleased that the court recognized the right of the woman to share custody of her own offspring. Correct me if I’m wrong but the mother(female progenator) was seperated from the child for not an insignificant amount of time before she won the right to share custody; the law is not changed though, the woman that gives birth is still considered the mother, while I think thats the wrongest thing in the world, that is the way it is – that means women need to be really careful when the let another woman give birth to their offspring. If they want to raise their own offspring they should not sign those donor forms.

    • Generally the law does recognize the woman who gives birth as the legal mother of the child. The only exception to that is surrogacy and there the law varies state to state. Under the circumstances you describe the people who provide the genetic material will probably not have any particular legal status with respect to the child or children you give birth to. That is not to say you cannot have whatever sort of social relationship you want.

      Trouble in these cases typically comes when people who begin with an agreement disgree. I do not mean to say that this will happeen in your case, only that that is when it becomes messy.

  12. Thanks Julie and Marillynn, for taking your time out to respond.

    Julie- I really appreciate and respect your honesty and plan on following your blog. You are a wealth of information and I appreciate how your are honest and willing to share the information and experience that you have.

  13. Its very educational here. I’m learnung alot too.

  14. marilynn huff

    It also sounds like funnylittlepollywogs is handling her situation in a very open honest way I respect that – bound to yeild the healthiest results.

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