In November, a trial judge in California resolved a battle over frozen embryos by ruling in favor of the man, Stephen E. Findley, who contributed his sperm and who wanted the embryos thawed and discarded. The 46-year-old woman who contributed her ova, Mimi C. Lee, who has divorced Findley, may not be able to conceive again. Prior to the creation of the embryos, she signed a contract with her then-spouse that specified that in the event of divorce, the embryos would be discarded. Although Lee invoked the constitutional right to procreate, the court treated the prior agreement as dispositive.
Yet not all contracts are enforced. And what if there had been no contractual provision governing the divorce contingency? In this column, I will analyze some ways in which we might think about a frozen embryo dispute with no contract, in which the woman wants to preserve the embryos and the man wishes to discard them.
One way in which one might think about the frozen embryos is as human beings who have a right not to be killed (i.e., a right to be preserved). The California judge who ruled on Findley v. Lee spoke in terms that to some degree resonate with a pro-life view of frozen embryos, saying “It is a disturbing consequence of modern biological technology that the fate of the nascent human life, which the Embryos in this case represent, must be determined in a court by reference to cold legal principles.” If one is actually pro-life, then the contest between a parent who wishes to kill the child and a parent who wishes to preserve that child’s life would be a no-brainer: the preserver should win the battle.
Treating a frozen embryo as a person, however, raises some knotty issues. One issue it does not raise directly is abortion. If a judge were to decide that the embryos are entitled to preservation because they are persons under the law, the consequence would not be to compel anyone to be pregnant for nine months and to deliver a baby that she does not want. Because the embryos exist outside of anyone’s body, a decision about their fate can be made without infringing directly on a pregnant woman’s bodily integrity.
But then again, is bodily integrity completely irrelevant in such a case? If we consider what a woman endures in order to create the embryos in the first place, it would seem that the answer could be no. Although a decision to preserve the embryos does not force anyone to be pregnant, a decision to discard them retroactively nullifies all of her prior suffering. The woman undergoes repeat hormone injections, trans-vaginal ultrasounds, and an invasive procedure in which her eggs are “harvested,” all in order to become a mother. By taking away that possibility, a judge would be disregarding the woman’s prior experiences and, in a sense, retroactively intruding upon her bodily integrity, because the woman presumably would not have gone through fertility treatments had she known that the resulting embryos would be destroyed.
At the same time, however, treating the frozen embryos as “persons” entitled to live disregards women’s unique role in biological reproduction. It does so by ignoring the significant part that pregnancy plays in turning an embryo into a person. Calling the few cells that make up an embryo a full person, in other words, treats sperm and egg donation as all there is to making people. It denies the centrality of pregnancy and falsely renders males and females equals in their respective biological contributions to creating a baby.
In reality, a very significant part of making a person happens during the nine months of pregnancy, which turn a cluster of cells into an actual baby. We implicitly acknowledge as much if we recognize that preserving an embryo and never allowing it to be implanted is not very different from discarding the embryo. It is implantation and pregnancy, then, rather than preservation itself, over which the divorcing couple may be truly arguing.
The Right Not to Procreate
On the other hand, once we accept that an embryo is not yet a person, the man’s interest in not having children becomes salient. To the extent that he does not want to have children whose mother is no longer his partner, a view of the embryos as simply “potential” persons rather than “nascent human life” makes his case quite strong. At the moment, with the embryos existing in a freezer, the man is not yet the father of the children that the embryos could one day become. Taking the embryos and implanting them in his ex-wife would be imposing paternity on him against his will. He would now have to decide whether to have any kind of relationship with the children or whether to have nothing to do with them. If he chose the latter course, he might perpetually feel a sense of loss from knowing that he has genetic children in the world whom he has played no part in nurturing or raising.
The Right to Procreate
Treating the embryos as raw material rather than as persons does not, however, necessarily lead us to declaring victory for the man in the dispute. On the other side of the right not to procreate is the right to procreate, and the woman has a strong claim here as well. Although she is not literally being sterilized or otherwise physically stopped from having children, a decision to discard her embryos may effectively accomplish the same thing.
Mimi Lee is forty-six years old and a breast cancer survivor. For these reasons, her odds of conceiving again are rather slim. By discarding the embryos that she helped create (by enduring hormone injections, etc.), a judge may in effect be sentencing her to childlessness.
From her perspective, the woman has already begun the biological process of procreation, and a decision to discard the embryos may feel to her a little like a forced abortion. It is, to be sure, not nearly as intrusive as a forced abortion, but it does share something in common with that procedure, given that the intrusions she has already endured can be compared to the physical experience of a very early pregnancy.
Which Is More Important?
Once we treat the frozen embryos as something other than persons, then, we have to struggle with the battle between the right to procreate (held by the woman here) and the right not to procreate (held by the man). It is hardly clear which side should win such a dispute. For the woman, this may be her only opportunity to procreate, so discarding the embryos will not simply take away one chance among many to have children; it may completely deny her the ability to carry a pregnancy to term and give birth, as she wishes to do. At the same time, though, for the man, he would not simply have a child he did not wish to have; he potentially would have to have an ongoing relationship with a woman whom he no longer loves and with whom he may wish to have no contact at all. He also is left with a potential trauma if he decides to have nothing to do with children who he knows are biologically his own.
Before frozen embryos were technologically possible, if the right to procreate were in a battle with the right not to procreate, it would be because a woman was already pregnant and a man either wished for her to terminate her pregnancy or wished to force her to remain pregnant against her will. In such cases, the woman would win the dispute, because a forced abortion or a forced pregnancy is such an extreme assault on a person’s bodily integrity. The right to or not to procreate in such cases, would be pitted against not only the right not to or to procreate but the right to be free of an assault and battery on one’s body. With the advent of frozen embryos, however, we have a relatively clean battle between the respective right to and not to procreate.
One could resolve the dispute—as the court did in the Findley case—by attempting to calculate people’s intentions at the time that they gave their sperm and eggs, respectively, to create the embryos. The problem with that approach is that often, when people in a couple are creating embryos together, they love each other and are not really thinking about what might happen if they divorce. Without a contract, then, it may be artificial to try to calculate their intentions in the event of different contingencies that they were not anticipating. And even with a contract, public policy considerations might prevail over the written terms. For example, states vary in their willingness to enforce surrogacy contracts.
Thus even when it is possible to calculate a couple’s earlier intentions regarding the divorce contingency, people are known to change their minds, and courts might need to factor that reality into their calculations. In addition, some of the facts going into the decision—such as having survived cancer—would almost certainly not have entered into the couple’s thinking and could affect each person’s ultimate decision.
Although perhaps not a very satisfying answer, I would hope that a judge could make an equitable decision, taking all of the particulars of the former couple’s respective situations into account. Or mediation could provide a forum for the couple to find its way to an agreement. Considerations for the judge or the parties to mediation themselves could include: How much of an infringement on the right to procreate is the discarding of these particular embryos? Can the woman still have children without them? And what is the most salient motive for the man who opposes the embryos’ preservation? I do not think the battle is easily resolved, and that is perhaps one downside of having technology that can separate the initial decision to have children from the decision’s actualization, by months or even years. With such technology, a wise judge (or an excellent mediator) becomes all the more crucial, as scenarios previously known only to science fiction make their way into the real world.