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.