Who Gets The Embryos–And Why Does It Work That Way?

There’s a story that has been in the  news sporadically for the last months.   Some time in the past Sofia Vergara (who I guess is a well-known actress?) and Nick Loeb were a couple.  They wanted to have kids together and, for reasons I do not know, embarked on IVF.   As is typically the case, more embryos were created than were immediately used.  Two were frozen for future use.  But then the couple split up and faced the question:  who gets the embryos?

You can read one version of the most recent news story here and there’s also an interesting essay by Nick Loeb that appeared in the New York Times some weeks ago.   I’m a little wary of the facts in that essay, because surely they must recite Loeb’s version of events.  (One can assume there is another version out there, too, and we just don’t know it.)

There have been many cases presenting slightly different versions of this problem over the years.  (If you try the tag “frozen embryos” you will find many of them.)   There are many different ways of thinking about this and depending on which you choose the details of these cases may not matter.   But Loeb is advancing a relatively absolutist view that you don’t actually encounter that often, so I thought I’d think about it for a few minutes.

Judging by that essay, it appears that Loeb’s view (at least now) is that the embryos themselves have rights and, more specifically, have a right to live (or maybe a right to be brought to life?)   I actually think this view would actually have the effect of preventing most uses of IVF, or at the very least radically altering its use.   (In fact, I wonder if Loeb held this view at the time the couple embarked on IVF.)

The problem is that, as I mentioned above, it is almost always the case that more embryos are created than can be used in one round of IVF.   It’s my understanding that it is then fairly standard to screen the embryos to select those with the greatest chance of developing to a full-term baby.  Clearly it makes sense not to transfer an embryo that has no chance of being carried to term, right?   And if there is one that has a 10% chance and one that has a 95% chance, I think most prospective parents would prefer to use the latter.

But if the embryos have a right to be brought to term, this wouldn’t be acceptable, would it?   I think it might mean you’d need to create the embryos one at a time (or perhaps in pairs) just as you were going to transfer them.

You might think that people would consider giving the extra embryos to other people to use.   (This is sometimes, to my mind incorrectly, called “embryo adoption.”)   But while some do this, it is fraught for people who have provided their own genetic material.

In any event, it seems clear to me that the whole IVF industry is premised on the notion that the embryos aren’t individually rights bearing entities.   And it doesn’t appear to me that CA law suggests that they are.  (CA law governs this case.)  CA law relies on agreements between the parties about the disposition of the frozen embryos.   (The parties here agreed that they could not be used without consent of both people but did not include a provision about what to do if the couple split up.)   While the agreement might not necessarily be inconsistent with a view that the embryos have a right to life, that view does vastly constrict the sorts of agreements you can make.  (Indeed, I think all you could agree to is who would have the right to bring them to term if the couple split up.)

In the end, I’d guess that most people who have this view of the status of embryos wouldn’t use IVF, for the reasons I’ve just outlined.   And by the same token, most people who use IVF don’t take this view.    Thus, the rules for IVF–the requirements for agreements–are drafted with the likely users in mind.

I cannot help but be somewhat suspicious of Loeb.   Perhaps he changed his view of embryos as life bearing?  I don’t think he says.   Certainly he is entitled to do so, but then we have to think about what to do with promises he made when he held a different view.


8 responses to “Who Gets The Embryos–And Why Does It Work That Way?

  1. but i thought that multiple supreme courts have affirmed that legal rights begin only at birth? if thats so, than someones personal opinion about eembryos having rights should have no effect , legally.

    • Yes, I think you are right. People are certainly entitled to believe what they choose as to the status of embryos, but the law doesn’t consider them to have their own legal rights. It’s one of the things that is unusual here–the other cases (which he mentions in his essay) are generally about the competing rights of the adults who created the embryos. He would be in a weak position if you looked at it that way as he made an agreement, and we generally do let people make agreements about IVF. So he’s looking to invoke other rights. But I don’t think he can get much traction, particularly in CA where there is pretty clear law.

      • vergara comes,from a catholic background. seems like hes trying to evoke pressure on her, not evoke legal rights, the more i think about it, hence emphasixing the far fetched catholic connection

        • I think there’s a lurking issue here. Obviously he agreed to do IVF. Perhaps he regrets having done so? (Perhaps he is just being controlling, but I’m going to assume not.) This makes me think about regret, which we’ve talked about before. People do all sorts of things–like provide gametes or give children up for adoption–and then come to regret them when they are older. I am inclined to think that this is a part of living and that we are just bound to suffer regret in our lives. There’s a point at which our decisions must become irreversible. A woman can commit to an adoption before the child is born and then change her mind when it is born. But if she does consent to an adoption after the child is born, then she cannot change her mind a year later. I think about when decisions become final and why they become final, because that’s the point after which we’re just left with regret.

  2. as to a tangential issue to this case, but germane to the blog, he refers to a woman named Renee as “essentially,his mother” who was actually a paid caregiver.this relationship would have had no legal protections. renee could have b,een fired at any time. whats,your,opinion of that? why should a paid caregiver have a,lesser status than a parents partner?

    • In answering this I want to separate two things. First the law: In most jurisdictions the law does separate out paid caregivers from those who can claim de facto parentage. What I mean is that the de facto parentage test includes a requirement that the person not be paid to care for the child. I think the reason why is that people worry about the nanny who claims custody and so they want a simple and clear way to eliminate her.

      Second, what I think: I’m not sure I care if a person is paid or not. I think what is more important is the quality and nature of the relationship. This does, in my mind, relate to how a person thinks of herself/himself. So in my experience paid caregivers don’t think of themselves as parents. They’re not making a permanent commitment to the child. They’re not taking responsibility for the child beyond the hours they’re paid for and there’s a shared understanding that they are not there for the long haul. This shapes the nature of the relationship that they have with the child. It can be warm and loving and all that, but it is (again, this is in my experience) bounded. In other words, they don’t have a parent-like relationship with the child, even if they are very involved in caregiving.

      Now of course this wouldn’t always be true. And I’m sure things can change over time. And it can be messy. But I wouldn’t say that the presence or absence of money is what matters–it’s what the relationship between adult and child is. This, however, is typically not what the law says.

  3. if we would accept the premise that someone has “a right to bring his embryos to term” would the corollary be that he as a right to use a surrogate?

    • That’s a great question. Otherwise his right is just a right to keep them frozen, right? And a practical response–that he’ll very likely be able to find a surrogate for a price somewhere in the world–isn’t very intellectually satisfying. I suppose it is possible that the right to bring the embryos to term implies that the jurisdiction cannot bar surrogacy. Not something I’d thought about.

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