Disposition Of Frozen Embryos: Maryland Court Chooses the Person Who Wants To Use Them

Yesterday I put up a post about a recent case involving posthumously conceived children–which is to say, children conceived with sperm that had been frozen.   You can think of this as a problem created from our ability to keep reproductive materials in long-term storage.    Here’s another storage problem that comes up with some regularity–and also one I know I’ve written about before, though I cannot find where.   (A bit frustrating, I must say.)

Sometimes couples who are splitting up have frozen embryos to deal with.   That was the problem in this instance.  Godlove Mbah and Honorine Anong had been married.   While they were married they created embryos via IVF and a daughter (now three) was born.  There were extra embryos that were frozen for possible future use.  And then the couple split up.   What happens to those extra embryos?

It’s all quite easy if the parties agree–because I think it clear that they can do as they wish.   And they might even agree to share them–some for each person.  (This is the result I think I wrote about not so long ago, but I sure cannot find the post.)   But what if one person wants to use them and the other wants them destroyed?

In general the courts favor destruction.   There’s some idea about a person not becoming a parent (here a genetic rather than a legal parent) against their will.   I think this probably accords with the views of many readers.

But the court in Maryland did something different.  It awarded the embryos to the wife on the theory that she could not otherwise reproduce.   Assuming this is true, you can see that the court had a tough choice–either allow the use of the embryos, which means husband ends up with a genetic child when he does not want to, or force the wife to forgo the opportunity to have a genetic child.  The one thing you cannot do is take the embryos apart and give each person back their own component.

Is this the right call?   Hard to say, especially for me, since I don’t really feel the genetic connection stuff that strongly and both sides here are really playing on that.

One side note:  the wife was awarded the embryos even though she was deemed to be an unfit parent of the three-year-old.  That’s really surprising to me.


36 responses to “Disposition Of Frozen Embryos: Maryland Court Chooses the Person Who Wants To Use Them

  1. Aha but once you decide that the right to use frozen embryos falls under the right to reproduce, the court can’t very well interfere with that, can they? Just as they couldn’t interfere with her reproducing by having sex.
    Still there is something very wrong with this state of affairs.

    • Note that the husband, who didn’t want this child to be born at all, is going to be left picking up the pieces for his unfit-to-parent ex wife.

      • Julie, I imagine your solution- for him- is that he should be considered a sperm donor and not a legal parent.
        First of all we need to ask if that’s legally possible. Don’t sperm donors sign away their rights at the time of donating sperm, before an embryo is conceived?
        Second of all, knowing that the mother is unfit, the state would never let him off the hook.
        Third of all, this man does not have the luxury that an anonymous sperm donor has of anonymity, of not knowing who where and when his offpsring is, and of therefore being able to pretend that he does not have any offspring. He knows very well and even if he could legally get off the hook, both he and his society, including his child would know very well that he is but a derelict father. And me thinks he will certainly care about the welfare of the kid once it is born unless he is a total jerk. a “solution” that goes against the grain of values deeply embedded into our culture is no solution at all.

        • Yes its suppose to all hinge on these agreements they sign to not take care of their children, donors that is. But sadly many people whose gametes are stolen have children that loose their right to care and support from the individuals who made them even though those people never signed such an agreement and are fighting to be able to take care of their child to know who their child is. Look up UC Irvine or Oregon Health Sciences University where lots of people had their gametes taken and don’t know where their children are. Sux to be them or their kids

        • I don’t think he should be forced to be a legal parent here. If an embryo had been transferred and someone was pregnant, he couldn’t force the pregnant woman to get an abortion, but this is quite different. I think your question–can you get to this result–is a critical one.

          I think you right to suggest that he isn’t like a sperm donor in the sense that he didn’t go into the project with the intention that someone else would be a legal parent and he would not be. He went in expecting to be a legal parent.

          I’m not sure what a judge could really fashion to avoid him becoming a legal parent–it must depend in part on the law of the jurisdiction. Even if the wife (ex-wife) agrees not to seek support, etc., that’s not enough–as we know from the current Kansas case. https://julieshapiro.wordpress.com/2012/12/30/when-should-a-sperm-donor-pay-child-support-kansas-offers-an-answer/

      • He should be able to prevent implantation because prevention in that case does not control the body of the woman who wishes to gestate. He is still only exercising his reproductive freedom which unfortunately for her would mean she does not get what she wants, but does not mean her personal rights have been violated.

        • Right–this is a critical distinction–preventing transfer of the embryo is nothing like insisting a woman have an abortion. But this case is set up like a zero-sum game. (Let’s assume the facts are as stated.) This is her only chance to have a genetically related child. He doesn’t want to have a genetically related child (at least, not with her right now). One of them must win and one must lose. Is his right not to reproduce greater than her right to reproduce? If so, why?

          As I think have said, the majority of courts (nearly all) of the courts that have ruled on cases like this have ruled in favor of the right not to reproduce. But many of those (I cannot remember) don’t have the stark set-up here–where it is her only remaining chance. It’s easier to pick the right not to reproduce if the other party has future prospects for a genetic child.

          I think, but I confess I am not highly confident, that the right not to reproduce is generally more accepted in law than is the right to reproduce. Should it be this way? Why?

          • I think that is rather simple- because as the old maxim goes, your right to stick out your hand ends at the tip of my nose.
            You have a right to reproduce, but not to reproduce with a particular person, if that person does not want to.
            We have a right to have sex too for that matter- but only if we can find a willing partner.

      • It is certainly true that the unfitness finding seems to create an odd situation. I’m not sure how that ought to fit in.

    • They could not interfere with her reproducing by her having sex because to do so would be to take control of her body and force her to have an abortion or opposite wise force her not to have an abortion. That would violate her physical freedom.

      Preventing the embryo from being implanted into her body does not involve controlling her freedom for she does not have a right to reproduce anyone other than herself or control anyone else’s body but her own.

      Prior to implantation you still have two individuals able to make decisions on their own behalf and its not too late for one of them to change their mind.

    • The reason most courts side with the person who does not want to reproduce is there is that there isn’t any agreed upon right to reproduce that covers this. I mean, you have a right to engage in sex and you have a right to reproduce if you can and if you want to, but you have no affirmative right to access to ART. The right not to be a parent (whatever that means) is actually much more clearly established.)

  2. PS I looked under your tag “frozen embryos” which had a number of related posts, but I’m not sure if included the one you were looking for.

    • Thanks. I just cannot find what I remember and it is frustrating. I’m sure I remember a recent case where two women split up a number of frozen embryos. But maybe I only read about it and didn’t write about it. I thought I did. Will try searching some more. (Sigh.)

  3. In a British case involving a couple who split up following the creation of frozen embryos, the woman was denied the opportunity to use them by the courts because UK law specifically states that a couple must agree on what happens to surplus embryos. In the case of disagreement the default position is destruction. It was a sad case but most people agreed that having clarity in the law was very helpful.

  4. Sorry for posting so many comments, hope it is not too confusing. Upon rereading the article, I see that the decision was based on a contract the couple had made, not an essential human right to reproduce. It was a contract based decision.
    Are there other examples in which reproductive rights (to reproduce or not to reproduce) are subordinate to contract?

    • and should parental fitness be applied to the subject of a contract?
      To do so would treat the embryos as people, children and make it a custody battle in which the contract would presumeably not count. But embryos are not people at the time of the decision so property law is applied. I don’t see any room to introduce parental fitness in property cases…. Very complicated.

      • I think the most appropriate course of action is to treat human cells as human beings – not new ones, but agree that my cells are mine and yours are yours. Any small part of a person should be treated with the same respect as one would the entire person. My foot kicks you, I kick you. The wig your wearing is made of my hair, it stays mine even if you possess it. Bodies and their parts should not be treated as transferable property.

        • I’m not sure I understand what you mean–are my cells human (and me) or are they just mine? Are you suggesting that my cut hair (the stuff that ends up on the floor when I have a hair cut) is still human? I understand you are not saying that it an independent human being, but if that’s so and if it is a human being, then it must be me? I don’t think my hair clippings are me. And if the haircuttings are human, then how can we justify sweeping them up and throwing them out?

          I can see saying it is mine. But this is treating them as property. Still, if they are mine than I am free to abandon it to the trash or give it to someone else.

          Many people put gametes in a special category of human cells, separate from hair or blood or whatever. I’m content to treat sperm and eggs as property, but I’m fairly sure that you are not.

          • Where I’m going with this Julie is that we absolutely can not risk treating embryos as if they were born human beings. 1) because they are not, and 2) because what it means to bodily autonomy of the pregnant female – until the person is born they don’t exist to have rights.

            Now you can make laws that deal with how we treat people upon birth and the rights we afford them upon birth and if the terms of an agreement signed by their bio parent puts people in a compromised position then the law ought to not acknowledge or enforce a contract that compromises the rights of a third party. You don’t have to say the embryo is a person to do that you just have to be strict about how the law treats born individuals. Right? Juie does that not pretty much take care of the concern “what about the children”? Make sure that you have respectful protective laws for people at birth and if their bio parents or intended parent’s behavior or terms of agreement violate the liberties of the born individual then they should not be legally allowed.

            I think we are wrong to treat human tisue as property – it does deserve greater respect than an inadament object but NOT as much individual respect as if it were a fresh new separate person. As far as I can figure the laws around the possession of human tissue must regard any tissue as belonging to the body of a specific named individual deserving of the upmost respect that they have ultimate say over what is done with their tissue and who has it – so without a doubt the individual giving up the gamete must be someone who is willing to give them up and willing to give them for a specific purpose. People like to say that the donor is not the one wanting to reproduce but obviously he would not donate unless he wanted to create offspring, clearly that is what he wants and that is what he instructed the Lab to do – what he does not want to do is raise them. So if you treat the embryo like it is tissue belonging to the bodies of the people who reproduced it should be up to them what happens and not anyone who did the buying or who may have been given the embryo as a gift. You’re essentially treading on almost adult adoption there where you’d have adults making reproductive decisions for other adults. Not really safe on a global scale where it might work for select individuals. Broadly applied your basically saying its cool to buy part of someones body. Anyway if the people in dispute are quibbling over the embryo of what would be their joint offspring then the person who does not want to have offspring until the embryo is implanted.

      • There was one case (I worked on an appeal in it) where a judge decided to do a “best interests of the frozen embryo” sort of analysis–as though it were custody. That was deemed inappropriate on appeal and no other court I’m aware of has done that. If you thought that life began at conception then I think it is what you would have to do. But it is the worry about treating embryos as legal persons that makes many shy away from this approach.

    • love this. brilliant. This is the question. THE question.

    • I saw that as well. I bet if there had been nothing signed, the court probably would have sided with the person who didn’t want the embryos used. Although I think it’s a pretty standard thing for fertility clinic paperwork. I haven’t filled mine out yet, but they gave me the form for singles, which allows me to have the embryos destroyed upon my death OR to leave them to whatever person I wish to decide what happens to the embryos. So presumably I could leave them to someone who wants to use them but might be unfit to parent and there’s nothing blocking that legally?

      • I’m inclined to agree with you.

        I’m also curious–did the clinic go over this portion of the contract with you or did you just read it on your own? I don’t know how many people see the provisions, and it is most complicated with couples.

        • It was in the information packet I was mailed after my new patient consult. I wouldn’t be cycling til June at the earliest so I haven’t signed anything yet or been back to go over the paperwork.

          • Right. I just wondered about the extent to which clinics are counselling people about the various contractual terms. The thing is, most of the terms operate as between the clinic and the client. But when a couple does IVF there are often terms that will, in the end, operate between the couples should they split up. I’m not sure people really see that before they sign, which makes me more than usually reluctant to rely on contract theories.

    • The contract point is important. One thing to understand: In this case the contract is the standard contract provided by the fertility center. This isn’t a case where the couple actually considered the issue beforehand and wrote what they wanted. What probably happened was they were given a sheaf of papers to sign when they went into the clinic. Maybe they read them and maybe they didn’t. Maybe this reflected their intent and maybe it didn’t. No one knows that.

      This is often where the contracts in the frozen embryos come from. The clinics have standard form contracts and disposition of the frozen embryos is one of the topics covered. I’m not sure why clinics put one sort of language or another in–why some say “can be used” and some say “can’t be used.”

      In any event, though, I am leery of giving particular weight to contractual lanaguge that wasn’t written by either of the people involved and may not have been anything they gave any thought to. (Remember when these contracts are signed, no one is thinking about possible break-ups. I’m sure couples are focused on the IVF that lies much more immediately ahead.)

      Then there is this other question about how much you can hope to do with any contract–even a contract thoughtfully negotiated between two adults. There are at least two sets of potential problems then. One is that there are third parties involved–children (if they are already born, surely, but maybe even if they are not yet born) and the state come to mind. So if the law in a state says that a man who provides sperm is the legal father, this typically cannot be changed by agreement of the parties. And then there is the whole question of contracting away what may be rights. You can sometimes waive rights, but not always.

  5. If the born individual would be the offspring of the two people in dispute then at least we know we are dealing with two people arguing on behalf of their right to reproduce or not reproduce their own bodies. The question becomes whether they have the right to reproduce the body of the individual they are in dispute with and the answer should be no unless of course the embryo is actively being gestated – then one can’t stop themselves from being reproduced because one has no authority to control the body of the gestating female.

    Like all rights, the right to reproduce begins and stops with yourself; it does not extend to other people. You don’t have the right to reproduce anyone other than yourself. We tread on dangerous territory when we freeze sex cells and embryos because it can give people control over the bodies and reproductive freedom of people other than themselves. We have situations where people sell their reproductive rights an courts are siding with the rights of the buyers. Frightening. When eggs and sperm and embryos are treated by courts as property for lack of ideas on how else to handle them we end up treating human beings and their offspring as property in the vein that if you own the body of the cow you own the body of the calf.

    If we apply the theory that people are responsible for taking care of the results of their own actions then it is clear that they are responsible for taking care of any lives they create through the reproduction of their own bodies. One should not be allowed to sell their personal obligations any more than they should be allowed to sell their personal rights. Imagine if women sold their right to have an abortion (or scarier her right to not have one) for a years worth of tuition or if a man sold his right to vote to a special interest group for a down payment on a house. Would the courts enforce these agreements? Would these people be bound by their promises and prevented from changing their minds? Is it their last will and testament – are the people who buy their rights essentially to be considered executors of these people’s will? Execution is not the will of the executor but of the person they are acting on behalf of they are taking action for them without responsibility for the results – or do we now hold people responsible for the actions of those they control. Its really a freaking mess. Freezing live human cells has given people the ability to control the bodies of others with relative ease and now we have courts treating this bodily property as property. And we drift further away from personal responsibility. Further into territory where we are totally out of balance and dreadfully out of bounds.

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