Regulating Reproduction: Embryo Custody Versus Abortion

Thecase centered on Dr. Mimi C. Lee and Stephen Findley, her ex-husband. Before their wedding, Lee was diagnosed with breast cancer and told that her fertility might suffer during the course of treatment. After getting married in 2010, the couple decided to create and freeze embryos so that they could still have children. At the fertility clinic, they both signed a form indicating that in the advent of their divorce, the embryos would be destroyed. In 2013, the couple separated, and they divorced earlier this year. Lee wanted to use the embryos nonetheless, arguing that, because she was now infertile, the frozen embryos represented her last chance to have a biological child. Findley objected, and the fight was carried out in court. Last week, a San Francisco judge sided with Findley, ordering that the embryos be thawed and destroyed.

Though embryo rights cases are uncommon, they point to larger issues in regulating reproduction: Does the right to procreate outweigh the right to not procreate? Is an embryo an independent entity? These questions don’t have clear-cut answers. The issue is further complicated by existing precedents regarding abortion, which often contrast dramatically with rulings regarding embryo cases.

The judge’s decision in the California case echoes similar rulings in the other states that have taken up the issue—since there is no national legislation regarding post-divorce embryo custody, decisions are made at the state level. Eleven states have handled similar cases, with eight of them ruling in favor of the party who did not consent to have the embryos gestated. Three states, Pennsylvania, Illinois, and Maryland, however, found in favor of the women who wished to have the embryos gestated, arguing that the frozen embryos represented their only chance to become a parent.

In the aforementioned case from California, the judge found that Lee had not convincingly proved that she was, in fact, infertile. Furthermore, the judge wrote, “Findley’s right not to be compelled to be a parent with Lee outweighs Lee’s right to have a biologically related child.”

The conflict between the right to procreate and a right to avoid procreation is hardly unprecedented — in this case, the judge’s specific statement is notable in that the sentiment is seemingly at odds with rulings from abortion rights cases. A pregnant women, courts have held, does not need to take into account the father’s wishes regarding her fetus; if the father does not want to become a parent, she is not forced to get an abortion, and if he does, she is not forced to carry the pregnancy to term. In these embryo cases, however, courts have found the opposite: Without both parents’ consent to become a parent, an embryo cannot be gestated and the child cannot be born.

What is clear, however, is that the courts have found that the cases differ; embryo gestation, for the most part, requires both parents’ consent while abortion does not.

The various rulings have the potential to set conflicting precedents, creating an odd theoretical outcome for a case in which the father wants the embryo gestated and the mother objects. As noted by Robin Marty in an op-ed: “Perhaps the biggest irony is that if [the mother] really wanted to ensure the destruction of the embryos, the simplest way to do it would be to use them herself, and they would either fail to implant and grow, or she could undergo an abortion, a procedure that [the father] would not have any standing to block.”

The abortion comparison can be applied in a number of other ways: In the few cases that have ruled that women can gestate the embryos without the father’s consent, the fathers are effectively being forced to procreate — critics argue that this is akin to forcing a pregnant woman to carry a pregnancy to term. However, this outcome occurs in cases where pregnant women do not have abortions despite the father’s wishes — similarly, the father is forced to procreate. Such decisions generally attract less controversy.

The comparisons between embryo rights and abortion rights are murky and can be applied in a multitude of situations. What is clear, however, is that the courts have found that the cases differ; embryo gestation, for the most part, requires both parents’ consent while abortion does not.

Why do these rulings differ so dramatically? Some critics have argued that the difference is one of bodily autonomy. In an op-ed for the Huffington Post, Emma Gray writes, “For better or worse, the financial and emotional burden of carrying a child is greater on the person whose body is doing the carrying. Once a woman is pregnant, that responsibility — and therefore, the choice to take it on or not — is ultimately on her.” Unlike a traditional pregnancy, embryos are not reliant on a specific female body, and therefore neither parent has a larger burden in caring for the child and, by extension, more power in the decision.

Again, however, this interpretation could cause some new complications. As noted by critic Robin Marty, “Stating that an embryo, because it is not dependent on a particular person in order to live, has the right to be passed on to someone who will bring it to term and let it be born could even potentially open up new paths for people to claim ‘adoption’ rights over embryos in storage should those paying fees to keep them frozen decide to destroy them rather than use them.” Considering that there are four million frozen embryos currently in storage in the United States, arguing that because an embryo is not reliant on a specific female body and the decision is therefore not up to the mother (and by extension, the father) could open yet another can of worms.

Furthermore, child support laws complicate these issues. Even if a woman uses embryos without the father’s consent, he may still be obligated to pay child support. In the Lee and Fidley case from California, the judge noted that despite Lee’s promises to waive child support payments, such an agreement would not be enforceable in California. This same controversy arises in abortion cases. Even in cases where the father did not want the child carried to term and wanted the mother to get an abortion, he is still forced to pay child support. Judges have argued that giving consent to sexual activity is giving consent to the possibility of a child and therefore child support payments—yet this notion does not seem to apply to women who chose to go forward with abortions. Some critics have argued that this imbalance could be equalized if men were allowed to “opt out” of financial obligations if they do not wish to have children, and the mother still wants to go through with the pregnancy. The opt-out system, however, has never been tested. Nonetheless, the difficulties regarding parental consent in embryo cases point to similar difficulties in abortion cases.

It’s difficult to legislate cases in which both parents don’t agree, whether the issue is to gestate an embryo or get an abortion. As the judge in Lee and Fidley’s case noted, “It is a disturbing consequence of modern biological technology that the fate of nascent human life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles.” At the present moment, however, there doesn’t seem to be another solution.