Embryos: People or Property?

I don’t know many people who consider divorce fun or enjoyable. It is often a painful and tolling experience, in addition to the longer-term implications on the health and happiness of those involved. Children make the process even more complicated. Custody battles can become ugly. Disagreements about child support, or how and where the children will be raised can cause intense legal arguments. Children themselves can experience emotional damage during a contentious divorce, and in some situations, their physical safety may be at risk.

As if this isn’t hard enough, now with the accelerated innovations in fertility science, a new battle is complicating the divorce process: When a marriage dissolves, who gets the cryogenically stored embryos that a couple creates during the in-vitro fertilization (IVF) process?

First, a little background on IVF. IVF has helped countless couples conceive by fertilizing the eggs outside of the body. Once fertilized, embryos are formed and then placed within the uterus. Freezing embryos is very common, not just for couples already going through IVF, but for individuals planning for their futures. If the frozen embryos aren’t used by the couple, they may be donated to other hopeful parents or simply discarded.

As wonderful as IVF is for many couples experiencing a wide range of fertility issues, it also has a few enemies, namely the Catholic Church, which considers artificial insemination, IVF, and any other scientifically based method of conceiving abominations. In 2008 Pope Benedict called IVF and artificial insemination “shattering” to human dignity and that our “great values” were at stake. Certainly the church is also aware that IVF is a boon for same-sex couples hoping to become parents.

The unique question of which spouse owns a couple’s frozen embryos when they divorce was raised earlier this year in a New Yorker article highlighting a couple who found themselves asking it.  Karla and Jacob, though friends for nearly a decade, had a brief romantic relationship lasting only months. When Karla was diagnosed with cancer and was informed that the cancer treatments could cause infertility, the couple decided to undergo IVF and freeze the embryos to preserve their ability to have children in the future. Everything went as planned, and even after the breakup things seemed okay. But when Jacob started experiencing trouble in other relationships because of his decision to father these frozen embryos, he decided he wanted them destroyed. He didn’t want to father a child that he wouldn’t be involved with. He was worried about the financial implications that could come up. He was also worried what other people would think of him. So Jacob and Karla went to court.

In their case, Karla prevailed. The judge determined that Karla’s “desire to have a biological child in the face of the impossibility of having one without using the embryos,” outweighed Jacob’s privacy concerns.

Other cases have arisen, but as of yet there isn’t a standard solution because there’s still no clear law about frozen embryo ownership. For now, judges ultimately decide ownership using one of two definitions: person or property. If a frozen embryo is considered an unborn-child, the case will proceed as a custody battle and ownership will go to the best-fit parent. If, on the other hand, a frozen embryo is defined as personal property, ownership will be determined via property law.

While cases like the one before the Colorado Supreme Court, in which a divorcing couple’s frozen embryos were determined not be “people” and thus considered personal property) protect women’s reproductive rights, personhood legislation threatens both women’s reproductive rights and the fertility industry. Not only have personhood laws been notoriously used by anti-choice advocates as a way to reverse Roe v. Wade, medical advancements in reproductive care are also in the crosshairs of this archaic tactic. If IVF is forced to operate under personhood laws, divorcing partners in a relationship will have no choice but to proceed with conceiving a child once the embryo is formed, essentially forcing pregnancy on the woman. This also poses dangers to lab technicians and doctors. What if an egg or an embryo is dropped, damaged, ruined in some way? Could they be charged for manslaughter?

Currently, there are eleven proposed personhood bills in the states of Arkansas, Missouri, Tennessee, Indiana, Montana, Texas, Iowa, North Carolina, Washington, Kansas, and South Carolina. These bills are extremely dangerous for all women regardless of their views on abortion, their political standing, or religious affiliation. Personhood bills affect any woman who utilizes reproductive medical services. In disputes over IVF, frozen embryos should be considered personal property for everyone’s sake. And what is the best way to protect yourself from the uncertainties of the future? Sign an agreement with your partner/spouse outlining what will happen to any frozen embryos in the event of divorce or death.