Over the last 20 years, advancements in reproductive technology have brought pregnancies to many couples and individuals for whom it would have been otherwise impossible. Over those 20 years, the U.S. justice system has faced a host of associated legal and bioethical quandaries, with judges ruling on guardianship, adoption, donation and the discarding of frozen human embryos in cases of divorce.
Most recently, Missouri residents Jen and Patrick McLaughlin recently exchanged lawsuits with California couple Edward and Kerry Lambert over custody of two frozen embryos stored in a California fertility clinic. The embryos were created by the Lamberts, with the husband's sperm and the egg of an anonymous donor. After the birth of their son, the Lamberts furnished their remaining frozen embryos to the McLaughlins, but asked for the return of the remaining embryos after the McLaughlins conceived twins.
Cases involving divorcing couples fighting over embryos are on the rise, with a gradual legal consensus emerging after a whole host of interpretations and decisions from the courts.
Perhaps the two most powerful models for embryo custody cases are Roman v. Roman and Davis v. Davis. The first case, Roman, scrutinized a written agreement (or "preprocedural agreement") by the couple in which they agreed to discard three frozen embryos they created in case of divorce. During the divorce proceedings, the wife obtained a court order allowing her to use the embryos. The court explained that the embryos "were community property" and that awarding them to the wife was a "fair and equitable division" of that property. The husband promptly appealed.
In the second case, Davis, the court was asked to determine whether a female divorcee could use the frozen embryos created with her former husband for personal conception; the case helped push some findings of Roman v. Roman to the next level. The wife later considered donating the embryos to an infertile couple, which raised the objections of the husband; he wanted the embryos destroyed because he was against "fathering a child who would not live with his or her genetic parents."
In that case, the Tennessee Supreme Court decided that:
- While embryos are not "persons" under federal or state law, they are special entities entitled to special dispensation because of their "potential for human life."
- A binding, legal preprocedural agreement should be in place, so as to spell out the intentions of the couple if they fail to reach consensus on the future of their embryos.
- In absence of a preprocedural agreement, control over the embryos should be given to the party not wishing to reproduce, unless the opposing party has no other way of becoming a parent.
The Tennessee Supreme Court explained that the "right of procreational autonomy," made up of two outcomes (the right to bear children and the right not to), favored the ex-husband seeking custody.
The American Society for Reproductive Medicine (ASRM) developed an "Ethics Report and Statement on the Disposition of Abandoned Embryos," which urges fertility clinics to require couples considering embryo storage to provide detailed directions concerning the status of those embryos in the case of life-altering events such as divorce. Such preprocedural agreements are likely to help in out-of-court settlements.
This brings the focus back to the Lamberts and McLaughlins. The former assert that the case is a clear-cut contract law case, while the latter is questioning the validity of the contract in the face of family issues. Regardless of the outcome, it's likely that the California court ruling will move embryo custody law to a new level.
