Circling Back to the Long-Term Frozen Embryo

The last of my really sporadic posts concerned a new story about Liam Burke, a child born a little under a year ago.   His mother–and here I mean the woman who gave birth to him who is also his legal mother and his social mother–is Kelly Burke.   The embryo that became Liam was transferred to Kelly’s uterus after it had spent 19 years cryogenically preserved.   (You can just go read the post, if you  like.)

Anyway, the story has surfaced again and this time a couple of other things struck me.   In fact, I found echoes of the issues raised by the more recent post about the underground market for children.

Here’s the thing.   The embryo in question was given to Kelly Burke by a couple who had created these embryos 19 years earlier when they were having children.   The article (and perhaps the people involved) refer to the process by which Burke was selected to receive the embryo as adoption.   But I’m quite sure it wasn’t really adoption–not adoption in the legal sense.  Instead, I think this is a private transfer of the embryo from one set of people (the OR couple) to another (Kelly Burke).   (I think this because I don’t think any state’s laws actually consider a frozen embryo to be a child and thus, no state’s adoption procedures apply to a frozen embryo.)

This leads me to two different observations.  First, what the Oregon couple did is somewhat akin to rehoming–except for the fact that they weren’t rehoming a child, but instead they were rehoming a frozen embryo.   And to me this makes all the difference in the world.   In my view an embryo is not a child.  Thus, while it would make sense to have all sorts of rules for who can take on care of a child (rules that might be evaded via rehoming), I don’t have the same response with respect to embryos.   I suppose this really comes back to a point I made years ago–adopting embryos doesn’t make any sense–unless you think embryos are the same as children.

So this is a private transaction and (unless we’re going to start screening all people who want to be parents) ought to be a private transaction.  But that said, look at the process the Oregon couple employed.

 [F]or four months, by email and phone, she [Kelly Burke] answered questions about politics, spirituality and her views on education. She and the couple agreed to an open adoption, which means Liam will get to know the couple who gave him life and his siblings.

It doesn’t sound like there’s anything quite akin to a home study here, but it was hardly a casual handoff.  Indeed, it may well be that the Oregon couple’s inquiry was more thorough than some of those made by those rehoming their kids.

There are, of course, a number of reasons for that.  The people seeking new homes for their children are generally in desperate straits and time is of the essence.   They don’t have time to spend four months in dialog with potential new parents.   By contrast, the Oregon couple, having waited 19 years, could wait a few more months.  The embryos weren’t changing and didn’t have any unmet needs.  They were frozen in time.   So I don’t point to this contrast to blame the people rehoming their kids, but only to note that just because it is done privately, doesn’t mean it isn’t done thoroughly.

In fact, I’m somehow vaguely troubled by the sorts of things the Oregon couple explored.   Perhaps it all makes perfect sense–especially if there’s the prospect of a long term relationship between the person chosen to receive the embryo and the Oregon couple.   And of course, I don’t know what the precise questions were or what the right answers are (or maybe even if there were right answers).

I think my unease might go back to the public/private thing.  If the state places kids for adoption there are non-discrimination principles it is obliged to follow.  It cannot rule out atheists, say.   But when the process is private (here not adoption, but still private) discrimination may be permissible or at least impossible to avoid.

I know this is all rather far afield, but the story about the 19 year old embryos does keep resurfacing and I was suddenly struck by the odd resonances with the last topic here.   Just thought it was worth thinking about for a little bit.

 

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45 responses to “Circling Back to the Long-Term Frozen Embryo

  1. i don’t think discrimination is an applicable concept,
    it’s not like they were running a business open to the public.
    individuals looking to place children through adoption may also seek adopters with particular external criteria, such as similar religion to themselves. its not discrimination when an individual does it only when an agency does it.

  2. Eggs sperm and embryos are not children. They can’t be adopted. Forget about the embryo really. What are the rights of people at birth? If you are not the offspring of people raising you, and they have legal recognition as your parents, they’d better have gone through court above board and on the record or you are a victim of black market adoption. The whole point of the court approval process is to ensure that children are not traded off the record. All people are offspring of biological parents who caused their existence. Adoption seeks the bio parents out in order to firmly establish the origin of the child because you cannot be trafficked into your bio family no graft or shady dealings nets you a set of bio parents, but shady dealings can net you a set of non bio parents. If there is no court approval authorizing people to become the legal parents of someone else’s offspring that is black market adoption

    • That isn’t legally true though, is it? Because embryos are not seen as children, and their origins are legally irrelevant once they are born. Weren’t embryos awarded to one spouse over the other — along with other property — in quite a few divorce cases? I am sure I recall reading about this.

      • J
        You are right that the law does treat embryos sperm and eggs as property in divorce cases which is absurd and frightening. I don’t think of embryos or eggs or sperm as new people deserving protection but as part of the body of existing people deserving of protection. We are not supposed to be able to own human beings either in whole or in part. Nobody should have control over another person’s reproductive tissue as it means they have control of their reproductive freedom and their choice to reproduce or not reproduce is in someone else’s hands. It makes it impossible to change one’s mind and back out of a promise to reproduce. The whole concept of freedom is the right to break a promise and back out of a deal you thought you wanted to be part of earlier. On one hand the law underscores the principals of freedom but on the other, undermines the same principals by ruling that a person or company can actually own other people’s sperm or eggs or embryos.

      • You are also right that the courts do not take into account the origin of people when they were born if either one or both their parents were gamete/embryo donors. There are other instances where the court also disregards the origin of people when born as well and it is really tragic that they are not protected and treated as if black market adopted.

        If it is not important to record the identity of people’s biological parents separately from the identity of other individuals who fulfill the duties of an absent parent then we should just get rid of court approved adoption completely. If having the people who want to raise us written down as parents on our birth certificates is good enough for the offspring of donors then it should be good enough for everyone and there needn’t be any time or money wasted in court. Let’s get rid of adoption entirely. In fact let’s stop collecting information about people’s parents at birth since the information is useless for medical purposes for hundreds of thousands of people born every year.

  3. “But when the process is private (here not adoption, but still private) discrimination may be permissible or at least impossible to avoid.”

    The selection process could be categorized as a step in sexual conception/ implantation, which is viewed classified as a private activity.

    • Now wait. We are not talking about about something that people have a right to that they may then be justified in stating that they were discriminated against if they don’t receive it. We are not talking about equal opportunity employment here. We are not talking about the equal right to an education or to vote or to ride in any seat on the bus. We are talking about two things
      1) an individuals reproductive freedom
      and
      2) an individuals obligation to be accountable and take care of his or her own minor child

      Everyone already has a right to freely reproduce. Some people cannot reproduce it does not mean that their rights have been violated unless someone has restricted them from reproducing against their will. Your right to reproduce does not extend to a right to reproduce anyone other than yourself. You don’t have a right to be pregnant with anyone’s embryo but your own produced by your body with your own egg. If someone elects to allow you to carry their child to term that is entirely up to them. Nobody employs surrogates to carry their offspring; they don’t take taxes out they are not employers held to Federal standards for minimum wage and workman’s comp and discrimination etc. At best a woman carrying a surrogate pregnancy is akin to an independent contractor dealing with clients that chose her to provide services for whatever reasons they so choose. A surrogate pregnancy is a surrogate pregnancy whether or not the surrogate keeps and raises the child.

      Which brings me to number 2

      2) People who are shopping for a baby are not trying to get a job and cannot sue for hiring discrimination. You don’t have a right to raise anyone else’s child. If they elect to allow you to be in their child’s life then so be it otherwise tough luck. You don’t even have a true right to raise your own child but you have an obligation to do so. It’s the child that has a right to be raised by you the person that made them and caused their dependency.

      • Individuals do not have a right to “freely reproduce” because individuals do not reproduce, a man and a woman reproduce together, creating mutual offspring. Individuals have a right to be fertile (as in, not sterilized, and their fertility respected and protected as much as possible) and to marry someone eligible who consents to marry them, and then to have sexual intercourse, and again to have adequate medical care to have healthy children. Then they have an obligation and an expectation but not a right to raise their children.

        Courts can do what they do to force people to pay whatever monthly sum they impose on people. I’m not sure we should suddenly force sperm donors to support kids, maybe we should make the clinic owners pay, and society pay, not punish people who were doing something legal at the time. And going forward, we should just make it illegal to purchase sperm and eggs and embryos or trade in them at all.

        • John, rights are individual in nature. A person can personally exercise his or her right to not reproduce if they don’t want to. When you get married you become a family, not a new and unique individual with two heads. Medical care of any kind still only treats one body at a time. The patient is the sick one who needs to get well. Their spouse is their spouse and is not part of them in reality. They can pretend to be one person but they are not one person.

          Maybe this is clearer. Each person is like 49% Mom and 51% Dad. They reproduced themselves as individuals not as a unit. They did not come together into a single joined human being and then go make copies of that joined human being – their child is the first joined version of the both of them who is able to reproduce both their genes at once and that will be their grandchild. The child is the unification of the two individuals who reproduced together but not as a unit, their rights were never joined except in the individual that is their child.

          • Reproductive rights are not individual in nature, they belong to a marriage, and people have a right to marry someone eligible, who consents to marry them,a right of the marriage to have sex, and of the mother to give birth. That’s it. There is no individual right to sperm or eggs. A man has no reproductive rights with his sister or with his neighbor’s wife, at least not until she stops being the neighbor’s wife (a sister will always be a sister however). Saying that reproductive rights belong to individuals implies that people have a right to sperm or a womb with which to intentionally become single parents, and sorry but no they don’t.

            Infertility affects both spouses equally, even if only one spouse is infertile. Spouses do not have a right to reproduce with anyone other than their spouse. When treating infertility, both spouses are examined for the cause, both spouses are treated to be healthier and more likely to conceive together. That’s what “for better or worse” is supposed to mean. But now people feel cheated if their spouse is infertile and say “it’s not fair, we have a right to reproduce!” but they only have a right to be healthy and fertile and have sexual intercourse and reproduce together, not individually! If they can’t do it together, they can’t do it. But they have a right to do it if they can.

            • John if you’re gonna get all Biblical on me we can’t have a conversation. You need to have a conversation on common ground that we all stand on otherwise your comments are only going to apply to people who believe what you believe. Nobody in the free world thinks that getting married gives you the right to have sex with your spouse – that would imply that your spouse could not change their mind about it moment to moment. You have a right to have sex with them if they feel like it. You also have the right to have sex with someone other than your spouse even if it pisses your spouse off. Or even if you sneak around and lie to your spouse about it, it is not the government’s job to police our personal relationships and broken vows or promises. We simply have the obligation to be accountable for our own actions, We are not obligated to be responsible for anyone else’s actions but our own, with the exception of financial debt of our spouse or financial debt of our children.

              Maybe rights are the wrong word. I’ve been thinking that for a while anyway. How about this, forget rights entirely on the part of people to reproduce – it’s just something that people who have offspring have done. End of story. Screw reproductive rights. Let’s never talk about reproduction again then. Let’s just stick to people who have offspring. So once people have offspring they have responsibilities to their offspring all on their own, whether they are married to the other parent of their offspring or not. Don’t worry about their intentions in creating their offspring whether they were good bad or indifferent really makes no difference in practicle terms to meeting their children’s needs once they are here. Unless child support of every child born is going to to turn on what the parents were thinking before their children existed back when they were not parents, we should not use intention as the basis for the support of any child.

              • “Nobody in the free world thinks that getting married gives you the right to have sex with your spouse – that would imply that your spouse could not change their mind about it moment to moment.”

                No, it doesn’t imply that. Affirming that marriage is the right to have sex does not imply it is a right to force the spouse to have sex, or do anything. All it means is that a married couple cannot be prohibited from having sex or procreating offspring, if they both want to. Hopefully you agree with that?

                “You also have the right to have sex with someone other than your spouse even if it pisses your spouse off.”
                No, you don’t have a right to have sex with someone other than your spouse. And notice how you have changed your absurd idea that having a right to have sex implies a right to rape someone. If it implied a right to rape your spouse when I said a marriage has a right to have sex, then it must imply a right to rape someone to say that you have a right to have sex with someone other than your spouse. See how that’s an absurd reading of what “the right to have sex” means? Pwned you on that one! All a right to have sex means is that it is legal and ethical and approved by society and cannot be prohibited. Adultery is not legal (in my state at least) or ethical or approved and should be prohibited in every state. That doesn’t mean we have to arrest people for it, like was done 50 years ago, but it does mean we can say it is illegal and wrong, and it means we can prohibit sperm donation.

                “we should not use intention as the basis for the support of any child.”
                I agree with that, I never said otherwise. What I said was that intentional unmarried conception is not a right and should be a crime and severely punished in order to shut down sperm banks and egg sales. And I said that unintentional unmarried conception should not be punished, it should be handled the way it is handled now, with the same obligations of support as a married couple has. There are lots of examples in law where intent makes all the difference in how people are punished. First degree murder versus second degree and third degree is all about intent.

        • Suddenly force sperm donors to support their kids? Why not? Why should we have separate rules for some people with offspring? You realize it creates offspring that don’t have equal rights? It does most definitely matter where a child’s support money comes from because it matter’s that the person responsible for the child’s existence is held personally accountable to the same extent everyone else is accountable when they cause a dependent human being to exist. We need to end the exemption given to gamete donors. If you donate a gamete it should not mean you are not responsible for the resulting children as parents.

          They want to say that they are donating sperm/eggs/embryos and not kids or their parental title, let’s see them put their damn money where their mouths are.

          • Because society allowed sperm donors to donate sperm and they never promised or suspected they’d have to support their kids. Many have their own families and it wouldn’t be fair to them. I do think the books should be opened and the birth certificates corrected, but it shouldn’t result in changes in guardianship or financial or social obligations. Does the fact that some people’s parents are dead or broke and others are super rich create offspring that don’t have equal rights? What good does it do to have a right to support from someone who is dead broke. Not everyone’s social security survivor benefits are equal either. I think children of sperm donors are owed support by society, equally, no matter who their donor was or if they can be found or not, because it was society that did this to them and deprived them of their rights. Children of women that used the anonymous one night stand method also deserve support from society, because society for too long looked the other way. Of course, if the father can be identified, the father should be on the hook, as is the case now. But not for sperm donors, because it’s society’s fault, not his. We should be on the hook (but of course that would a windfall for the mother, and she wasn’t promised anything and doesn’t deserve anything, so forget it. They’re just screwed, like being born to poor people.

            As for changes going forward, we need to end gamete donation, which will end the exemption given to gamete donors. There is more injustice than just the exemption of support obligations, and more damage than just to the child’s bank account.

            Your solution is an improvement, and would perhaps end gamete donation too, but it wouldn’t end it in cases where the donor thought why not and signed it anyway, and those situations would be really strange. People shouldn’t make children together with someone they don’t want to love and cooperate with and raise the child together. It intentionally puts a child into a divorce situation that is really hard on kids. It can’t be justified.

            • “Because society allowed sperm donors to donate sperm
              and they never promised or suspected they’d have to
              support their kids.”

              Boo friggen hoo! Plenty of unfair laws have been repealed much to the shagrin of people who had been reaping benefits at the expense of those discriminated against. They’ll get over it. I’m not suggesting that they have to do anything for their offspring that the rest of us don’t have to do. If they don’t like it they can always criminally abandon them or give them up for adoption so long as there has never been anything taken in exchange for relinquishing their duties to someone else.

              “Many have their own families and it wouldn’t be fair to them.”

              Oh really? They have their own families? Could he truthfully say that his offspring were not his own offspring? Could he really get away with trying to explain that one was different than the other somehow? What makes one more deserving of his support than the other? They sure are not another man’s offspring. He sure had no idea that anyone else would be trying to take care of his kids in his absense. He just left it all to chance and they are part of his family. If you introduced his nieces and nephews to the kids you say are not part of his family and explained that they are full first cousins but are not really part of his family….you think they’d make prom dates with them? They are his freaking family John. they are. they are. You think his parents would not think of all his offspring as their grandchildren? OMG

              Wah I should only have to take care of my kids if I’m in love with their mother otherwise they don’t count as mine or part of my family. My kids don’t deserve my love my attention or my money if I was never hot for their moms. My kid’s value is dependent entirely upon what I think of their mother.

              “Many have their own families and it wouldn’t be fair to them.”

              • “Plenty of unfair laws have been repealed”
                But making him pay after promising him that he wouldn’t have to is ex post facto punishment. If anyone should pay anything its the clinic owners and the government.

                “They are his freaking family John.”
                I agreed we should open up the books and reveal the truth and fix the birth certificates so that people can be recognized as cousins and half-siblings. I just don’t think clinic donors should be forced to support their kids financially or socially. But if that’s what ends up happening it won’t bother me, I’m not a sperm donor.

                “Wah I should only have to take care of my kids if I’m in love with their mother otherwise they don’t count as mine or part of my family.”
                Cut the crap we were talking about kids born from anonymous sperm donors through clinics, not guys who abandon their kids. You are the one that wants to allow single people to make more babies where the parents have never even met each other. You say people have a right to purchase gametes and make babies with people they aren’t married to, I say that intentionally making babies that way is not a right and should not be legal and sperm banks should be shut down.

            • “but it wouldn’t end it in cases where the donor thought why not and signed it anyway, and those situations would be really strange. People shouldn’t make children together with someone they don’t want to love and cooperate with and raise the child together. It intentionally puts a child into a divorce situation that is really hard on kids. It can’t be justified.”

              Yeah but it is not illegal for other people in other circumstances to make babies with each other for whatever cockamamie reasons they might have that might not be the best idea. In fairness all the way around it is just not possible to legislate people’s reasoning behind why they ended up as parents. You cannot legislate love. If two un married un-inlove people can wind up with a kid that they must both equally support then there you go. The best the government can do is ensure that all people born are entitled to the same thing from the people that placed them in a state of dependency. It is not a right to a specific amount of money it is a right to a specific persons money, time, attention, name etc. Someone is always going to have more or be more prepared or better at taking care of children. The reason children have a right to their own parents support based on DNA tests is that people have to be accountable for their own actions first and foremost. Assigning that responsibility to someone else really should not erase the parent’s debt to the child at all.

              • It should be illegal for unmarried people to intentionally make babies together. It can easily be legislated, a federal crime. Lots of countries do not allow gamete sales and only allow married couples to do IVF with their own gametes. It won’t change what happens when unmarried couples wind up with a kid together, because we would allow them to say it was unintentional, even if it wasn’t. There’d be no lie detector tests or investigations, so they just would have to lie and say it was unintentional. Of course we’d hold them both responsible just like we do now. But it will shut down sperm banks and gamete sales.

            • i’m with john about this. this is a much larger question about law. people behave and make their decisions according to what the law is. if the law can suddenly change on them then what meaning does it have at all? that is why if the law is changed it should be changed going forward, not retroactively.

              • Ki if the law is not balanced, not fair, and results in discriminitory practice what your doing is correcting an error. Correcting a law that was unconstitutional to begin with. It’s just too bad if people are relying upon a law that treats other people unfairly. Plantation owners balanced their books thinking they’d have slave labor and then poof no more slave labor and that probably was a financial hit for them but they were benefiting unfairly to begin with. Everyone is responsible for supporting their own offspring and we have this bizarre exemption for some parents if they sign up to donate their children – why? It’s unfair to their children and to the rest of their family. None of them are able to access one another’s vital records because the donor is not named as the parent of all their own children. People that have hundreds and hundreds of children living in the same metro area are the only people whose names are not required to be entered on their children’s birth records. Do you realize what a public health hazzard that is for the community at large let alone the members of that family who in fact have a right to know the identities of all their relatives but can’t because of the exemption given to gamete donors? They never should have been promised the exemption.

                • We agree about correcting the birth certificates and identifying the progenitors retroactively, even though that breaks a promise to the donors. It’s just the part about making them pay support that seems arbitrary – some of them are broke, some have 100 children.

                  • Well they’d be spread thin for sure but nobody told them to go out and have 100 kids. Is it the kids fault they have so many brothers and sisters? Shouldn’t they all be entitled to his social security death benefits? Military death benefits? Isn’t it the least he could do? What possible justification is there for prohibiting his children from inheriting from him or their other relatives? They should not be punished for his irresponsibility. And what about his U.S. Citizenship? His children have a right to citizenship regardless where they are born and that might be important to some of them. What about medical and dental insurance, some may be covered but others may not be. I just don’t see why any of his offspring would be more deserving than others. I don’t see any justification if withholding support from some of them or at least the right to support. It cannot just as well be done by the sperm banks. You can’t assign corporations as financially responsible for the ramifications of individuals reproductive actions. What is lacking in sperm donorship is personal accountability for their own actions and their own offspring. You cannot drive that point home if you don’t hold people accountable for their own actions and nobody else’s. I’m talking within reason, without bankrupting the guy, that he should contribute to the care of all his children equally. Not a bunch to the ones he had with his wife and very little to the ones he had when he donated. It should be equal. The kids step fathers would just be their step fathers contributing their share to the kid through the mother as joint income the way normal step dads do.

                  • OK Marilynn, we should not only open the books and correct the vital records, but give the kids a share of the donor’s social security benefits and his citizenship and health care. Sure OK, it might destroy lots of donor’s lives, and probably won’t help any of the children, but OK, let’s go ahead and make them responsible for the kids they allowed to be created. Fine by me. As long as we also shut down the sperm banks and criminalize making kids using donor gametes, it doesn’t make much difference to me what happens with existing kids and donors and families. Boo hoo to all of them I guess.

                  • John I want to correct the records too. Listen can you tell me why you say that admitting their children exist would ruin their lives? This is horribly terrifying and painful for people when they think of approaching their estranged parents so worried that their parents will be ashamed of them that they are worthless and embarrassing and unworthy of recognition within their own families. They feel like they don’t deserve to bear their father’s name or that their siblings won’t think of them as being siblings because they have a different mother than the rest of them or father than the rest of them. They fear their grandparents won’t think of them as their grandchildren because they are illegitimate. They don’t feel worthy of their father’s name let alone inheritance. Money never never never crosses any of their minds. It only crosses my mind because the law only legislates a few key parental obligations and support is of course the primary obligation of a parent. My goal is to see all people equally accountable as parents for their offspring and that entails a support obligation regardless what their intentions were.

                    You might be surprised to know that I have not yet run into any estranged parents or family members that were ashamed of the children who were not raised in the family. All are a good bit ashamed of the estranged parent for their irresponsible behavior or sad that things were not different that they could have kept and raised the person in the family. I have witnessed reunions where the child says to the parent “I was scared you’d be ashamed of me” and the parent says “no I’m ashamed of myself for not taking care of you ashamed that you would ever for a moment feel you were unworthy of being part of your own family. I’m grateful that you’ll even speak to me.” And that meant the world to the kid.

                  • “Listen can you tell me why you say that admitting their children exist would ruin their lives? ”
                    I was thinking it would cause embarrassment and jealousy and discord in their family and maybe bankrupt them. But I had already agreed they should be named and acknowledge their children as half siblings of their other children, I just thought that the state, and not the donors, should be on the hook for support, in a uniform way that doesn’t depend on how rich the donor is or how many other children they have. But OK now I am saying sure, why should I, as a taxpayer, have to pay, when I never donated any sperm or contributed to this. (I remember telling a girlfriend I thought turkey basters were wrong and should be illegal way back in 1992). So sure, bankrupt some donors, bring chaos to some families, it’s not any less fair than other random things are, and sometimes they will be enriched from it. But they aren’t really the same family, they might be completely different culturally and religiously and regionally and ethnically, and it might be awkward. (My dad found out he had a half-sister in England when he was like 88 and she was like 93, and it was a little awkward for us, even though it was exciting to meet my English cousin who found us, we felt a little bit ashamed for having had a much easier life than his sister did, growing up with a single mom and an unknown soldier father they assumed had died in WWI.)

                  • That is such a sweet story I am glad that your family connected John. And yes why should you have to pay to support some rich doctors kids? They never should have believed they could create 500 children and would not bear any responsibility for it on earth or in whatever their version of heaven is duh.

      • Marilynn,

        I’m talking about “public” and “private” in the legal use of the term. What are the state’s rights to criminalize and/or interfere with the placement of embryos?

        May a state regulate the placement of the embryo in women’s uteri? May a state require the embryo to be implanted? May a state mandate destruction or creation of an embryo?

        Under the 14th Amendment, I see these decisions as “private” decisions, meaning that like other activities in the “realm of privacy” (sex, early abortion, marriage, sterilization) these activities are protected from state interference.

        • Tess I don’t think we are too far apart here in our thinking. Eggs and embryos belong to the female body that produced them just the same as an arm or a lung or whatever other body part makes up the whole of the individual. Of course all decisions regarding our body are up to us privately and nobody should have a right to possess or own our bodies or any part of our bodies and we don’t need a reason to say no to a particular person gestating our embryo for us. It’s private. I think because the tissue should be protected as a person, but the person the tissue came from, not a new person that does not even exist.

          • Yes, I’m playing with the legal question of discrimination. Individuals — not the state — decide how/when to gestate/ implant embryos, which situates the act in the legal category of “the private realm.” Julie had raised the question of discrimination, which would come into play if the state is involved in choosing how/who to implant with the embryo.

            That’s what I meant by a private (personal) act versus a public (state-regulated) publicly regulated decision/ allocation of the embryo.

            Of course, medical care is subject to non-discrimination laws. But the clinic did not control the embryo. The clinic simply provided storage paid for by the genetic parents, which would move the allocation of the embryo out of the realm of discrimination law.

            • I sound like a lawyer with tangled up legalese. To put it in a more straightforward manner: The state cannot control the implantation of the embryo due of the constitutional right to privacy. Therefore, because it is a “private” act in the realm of family/personal/sexual decisions, discrimination law does not apply.

              • Yes so we agree on the issue of it being a private decision but here is the interesting part – The decision belongs to the woman whose body the embryo belongs to. I have serious concerns about what people consider to be ownership of other people’s frozen embryos. I think freezing of people’s reproductive cells has also frozen people’s reproductive freedom at a moment in time leaving them unable to change their minds and decide not to reproduce if someone else has possession of their cells or their embryos. While I don’t think discrimination laws should ever come into play with regard to getting someone else’s embryo or sperm or eggs, I think the law needs to require some kind of tagging tying an actual named person to their own body parts to lessen the chances of misappropriation, theft, misimplantation and to get personal approval of any action that might produce their offspring at every microstep along their path to eventual parenthood.

            • I don’t think there is a privacy right to implant an embryo that isn’t the product of the woman’s marriage, because it came from other people and will be another person and this will be evident in the DNA testing. It will be impossible to keep it private. The privacy that inheres in a marriage applies to their sexual practices and sexual health, whether they are having sex or not, what positions and methods they are using. Homologous IVF is just another position, one that happens to involve doctors. But privacy never covered adultery or purchasing someone else’s baby or embryo or sperm or eggs, and many countries have prohibited those practices. There is no human right to do those things.

              I think freezing embryos and eggs and sperm should be illegal, or at least starting a pregnancy with anything other than a married couple’s sperm and egg and implanting it. Any excess or frozen embryos should be washed down the drain, along with all the frozen sperm and eggs, and the freezers turned off for good.

              As for surrogacy, I don’t know if it should be prohibited also or not. Things don’t need to be prohibited all at once, the first thing we prohibit should be using genetically modified lab created gametes or any other method of creating a person besides joining a man’s sperm and a woman’s egg. Then we should prohibit posthumous implantation. Then intentional unmarried conception (sperm and egg donation), surrogacy, freezing embryos and gametes.

              • I must say I agree with you on prohibiting freezing of gametes and embryos…heck maybe even organs of any kind because it means you have a person’s living cells on ice. It means that the majority of the body could die but some cells would still be alive and when any cells of a person are alive they the person are still alive. It means that other people can have control of your body making objection or changing your mind difficult or impossible if your brain and heart are no longer operational. When a person is all self contained their body and their consent to things like reproduction is entirely under their control. We can agree to reproduce as a sperm donor one day and then have a revelation the next that we no longer wish to be a sperm donor – not so easy if the sperm is frozen and shipped and bought and is part of an inventory of product that profit margins are based upon. Yes I do think any reproductive therapy should happen fresh only so that there is no question that the people involved are living for one and consenting for two. The consent needs to be as fresh as the cells as far as I’m concerned. Problem is that if people want to freeze their own cells they can it should not be anyone’s business to say they can’t. I do think the law should clearly spell out that people are parents of their own offspring no matter what they thought they were doing when they donated their eggs or sperm. Eggs sperm and embryos are not children, nor are they our offspring. Once your offspring are born they are yours nobody else can claim that they made them or conceived them or are their parents. There are certain concrete facts to consider like kinship and no trading gifting or selling and buying changes who winds up related to one another when the kids are born.

                • People who get cancer freeze sperm and eggs before undergoing chemo. It’s enabled people to have children once they get into remission.

                  • Yes I know but they can’t be sure the gametes they put in are the gametes they’ll get out. It is, after all, a bank, not a storage facility. Do we really believe they are not selling the healthy young gametes that go in to the bank when there is a clamoring market for them? Why pay for willing donors when they could borrow against the gametes they have on deposit and simply create whatever imaginary donor profile they want for them? Nobody who wanted to mate with a donor would know the difference. The people who think they are storing their own gametes for future use have no way of knowing how many gametes they actually produced, vs how many were recorded and stored in their name. Even with the gametes reported, people are always getting letters saying that some of their gametes did not survive freezing or were damaged and are unusable. Unless they DNA test their gametes prior to using them they won’t know if their gametes were replaced with other people’s gametes until they are raising someone else’s child.

                    Look at the U.C. Irvine scandal where patients who gave over their sperm, eggs and embryos in good faith for their own use wound up having children with total strangers who purchased their gametes and embryos thinking that they were purchasing donated gametes and embryos. Hundreds of children have been separated from at least one parent against their will and patient privacy laws prevent their parents from locating them. Anyone with older parents born in the 1990’s in southern California should be joining DNA websites because their families are trying to find them.

                    What I’m saying Tess is that the temptation to just borrow a little against a healthy person’s deposit must be tremendous given the astronomical street value of an egg or vial of sperm, knowing that the risk of discovery is virtually non existent so long as nobody on the inside working with you gets all ethical and busts you out. I can see where they almost view it as a victim less crime because nobody will miss a couple of eggs or a vile of sperm.

                  • I don’t think it should be a crime for cancer patients to freeze egg or sperm before chemo.

                  • How would you protect them better from what’s going on now where their healthy gametes can be misappropriated and used without their permission resulting in offspring running around that they know nothing about or if they do find out about them, are unable to find and raise themselves? How would you protect them against being given someone else’s gametes instead of their own when they decide to make a withdrawl? The whole freezing thing needs a lot of work. Maybe a guy can freeze his at home maybe a woman could freeze hers at home that sounds like a reasonable thing

                  • In U.S. society, people sue as a result of medical mistakes.

                    Surgeons also make mistakes. Sometimes they are quite horrible (the wrong breast amputated in breast cancer treatment.) The legal remedy is not to outlaw surgery.

                  • We moved on from outlawing it. You won that round. I asked you what you would do to prevent deter opportunistic graft and corruption that could not can not be detected by the victims.

                  • You believe in bodily autonomy from what I’ve read of your posts. How would you propose to keep people in permanent control of their own body parts even when separated from them?

                  • I think it would be a civil legal remedy – medical malpractice and $$ for distress. Similar to the $$ paid in a civil suit to the relatives if a person is killed in a DUI. Or if a surgeon amputates the wrong arm by mistake. Also the medical profession could strip the license.

                  • surprise visits from health care regulating agencies after all they do that already on other things.
                    although i believe once a body part has been removed from your body it is no longer your body, it is your property.

                  • Ki
                    Lets discuss that view that a removed body part becomes property. Property can be sold and become someone elses property. My house if sold to you, becomes your house, no longer my house. Let’s review what happens if I sell you my gametes. Do my gametes become your gametes just because you paid for them? Do my gametes become your gametes just because I said I don’t want them anymore, do whatever you want with them? Would it be a true statement to say not just that you own my gametes but that they are yours to the same extent that the house I sold you is yours? If my gametes become your gametes when you buy them, then why would we bother saying that someone “used donor gametes”? If you bought them they are your gametes now right? Does the DNA in my gametes become yours as well now? Like if I commit a crime would you say my DNA is your DNA still? WhaSo if the gametes I sell you become yours then I suppose my offspring are yours as well and are not related to me or my family right? You paid for that right? My separated body parts are property and you can own them. I can sell them. Right?

                    Hey how about my bodily autonomy and reproductive rights? Did you buy those when you bought my body part? You own it and my right to say what happens to it? My right to change my mind about letting you control my body and my reproductive behavior? I no longer have the right to change my mind about wanting to have offspring that I don’t raise? Are they your embryos or mine? What if I decided I don’t want you to be pregnant with my embryos I have no say in the matter? You bought the right to reproduce me? You own my reproductive choice and I can’t back out? Sounds like I enslaved myself.

                    What tissue donors do is agree to provide a service. In gamete donation the service they agree to provide is reproduction and parental abandonment. In order to create the kid that they agree to abandon, they need to provide their gametes. They really are not selling their gametes they are using their gametes to create the children that they agreed to abandon. If they were selling gametes as property then there would not need to be any agreement about what happens to the kids because they’d truly be the children of the people buying the gametes.

                  • There’s actually some really interesting legal property questions involving body parts and dead bodies. Dead bodies aren’t classified as property, yet heirs have rights over how the dead body is disposed of (rights to dispose within limits, of course.)

  4. The attached link is an instructive article and nicely written: http://www.americanbar.org/content/dam/aba/publications/family_law_quarterly/vol46/3fall12_hoffman.authcheckdam.pdf or Why The War Over Embryo Disposition is More Than Just Semantics published by the ABA by Jessica Hoffman.

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