Here’s a second-hand story that gives me something to think about: A two-year-old boy in Texas has inherited 11 frozen embryos left by his deceased parents. It appears (though I don’t think this is explicitly stated) that were the embryos brought to term, the resulting children would be full genetic siblings of the boy. But as he is only two and won’t be allowed to make decisions regarding the embryos till he is 18, there will be quite an age gap by the time any “sibling” appears if, in fact, they appear at all.
Strange though this seems I think it must be right. There seems to be no doubt that the embryos belonged to the boy’s parents. The parents died (sadly, they were murdered) and left no will and no other instructions regarding the frozen embryos. It’s hard for me to see any alternative at this point except to decide that the embryos–like all other possessions of the parents–devolve to the boy.
This may be treating them like property, but again, what is the alternative? We can say that they are a special form of property, but that wouldn’t take them out of the category entirely. They’re certainly not people. And there aren’t too many other categories to deal with. (Quasi property, referred to in the blog post I linked to, is still pretty much property.)
It’s odd to think about the options that will be presented to the young-man-to-be in 2030. Does he bring some of the embryos to term? (If he does, are they really siblings? Who would raise them?) Does he destroy them? Does he donate them? Or does he do nothing–and leave them in the freezer? The last, of course, amounts to kicking the can down the road. And eventually they won’t be viable anymore, I suppose. How would an 18-year-old make this decision? I don’t envy him the privilege.
And apart from consternation at the plight of the child, what’s to be made of this? I suppose I see this as yet more evidence of the need for careful counseling of those entering into the brave new world of ART. In an ideal world, the parents here would have thought about what they wanted to do with the embryos in the event they both died. Perhaps they would have chosen to leave them to their young son, but that’s hardly obvious to me.
It’s not that I think the parents’ choice of what to do would have been easy. I understand–I think I can imagine–that for people who have created and used embryos, some of which remain frozen, directing the disposition of those embryos in their absence is difficult. (Actually with 11 frozen embryos it was nearly certain that they were going to have to face the disposition question sooner or later.) But if they created the embryos (or caused them to be created) then it seems to me only right that they should bear the responsibility for the difficult decision of disposition.
It’s at the beginning of the ART journey that they should recognize that responsibility. If they don’t want it, they can always skip ART. (I am not saying they can never change their minds, by the way. Just that they need to appreciate the responsibility they will have.) And I think that this can really only be appreciated with education/counseling. It takes time, it takes thoughtful work, but it seems to me it’s the only right way to proceed. Perhaps, after reflection, they would have left instructions about the embryos. I think that would be a better outcome than this, even if I think the court basically got it right.