DECEMBER 20, 2011
All Rights Are Grounded in the Dignity of the Human Person to Self-Determine [which is the ultimate meaning of freedom]. The human person is "the only earthly being God has willed for itself" [because made in the image of God: Gaudium et spes #24], and therefore the only earthly being that enjoys autonomy.
Embryos Spur Legal Fights
Law Remains Unclear About Who Controls the Rights When a Couple Breaks Up
by ASHBY JONES
Couples who break up often fight over many things, but in vitro fertility treatments have created a new frontier: Who controls the frozen embryos that often result from such procedures?
Such disputes have been growing as the procedure—in which an egg and sperm are joined outside the body—has become more common. Yet the legal system hasn't established clear standards as to how to approach such cases and the outcomes have varied widely.
The rise of in vitro fertilization is triggering new case law as divorcing couples fight over the rights to embryos, Ashby Jones reports on the News Hub. Photo: Reuters.
One case on appeal could add to the legal morass. In 2004, a Chester County, Pa., woman and her husband had some embryos frozen shortly before the woman underwent chemotherapy treatments for breast cancer and nearly three years before the husband filed for divorce, which isn't finalized.
The woman, Andrea Reiss, now wants to use the embryos to have children. Her husband, Bret Reber, says the embryos should be destroyed.
In May, the Chester County Court of Common Pleas ruled for the woman, the first known case in which a court has ruled in favor of letting a woman use embryos over the wishes of her husband. The case is now on appeal to the Superior Court of Pennsylvania, with arguments likely early next year.
Few such cases have reached judges, but the scattering that have indicate great uncertainty over the issue, lawyers say.
Bryan Derballa for The Wall Street Journal
Frozen embryos at Reproductive Medicine Associates of New York. The center requires couples to agree on what happens to embryos in a divorce.
"We've got a state-by-state patchwork of approaches from around the country," said Charles Kindregan, a law professor at Suffolk University in Boston and an expert in assisted-reproduction law. "It's literally all over the map."
Many fertility centers require couples starting in-vitro treatments to agree on what would happen to the embryos in the event of a divorce. Some courts, such as in New York state, generally defer to such agreements.
But courts in other states, including Massachusetts and New Jersey, generally have ruled that the rights of the person not wanting to be a parent—typically the husband—should prevail over the person who wants to use the embryo, even when the parties agreed at the time of the fertilization to allow the embryos to be used after a divorce.
"The rationale is that people have a right to change their minds, and nobody should be forced to become a parent against his or her wishes," said Susan Crockin, an adoption and reproductive-technology lawyer in Newton, Mass.
No state's high court has yet allowed a woman to use embryos against her former husband's will, but courts have left that possibility open, especially in situations in which use of the embryos might be the last chance for a woman to bear a biologically related child. Such use of embryos likely would prompt a separate legal fight over the rights and obligations of the parents.
"The constitutional right to avoid procreation is well defined," said Maureen McBrien, a Boston family lawyer and, with Mr. Kindregan, the co-author of a textbook on assisted-reproductive technology. "But what's less clear is the constitutional right to reproduce and whether that right extends to a right to bear a biologically related child."
The Pennsylvania case, Reber v. Reiss, could test that issue head-on. In court papers, Mr. Reber argued he never intended to have children with Ms. Reiss, and that the couple created the embryos shortly after Ms. Reiss was diagnosed with cancer only as a "safeguard" in the event he changed his mind. A lawyer for Mr. Reber didn't respond to numerous requests for comment.
But Ms. Reiss's arguments moved Chester County Judge David Bortner. In his ruling, the judge found that without use of the embryos, Ms. Reiss wouldn't be able to bear children, that adoption wasn't a "comparable alternative" for her, and that the couple never made use of the embryos contingent upon them staying together.
Ms. Reiss's lawyer, Cheryl Young, said she was pleased by the ruling. But "this is one of those cases that really could go either way" on appeal, she said.
Such uncertainty prompts many lawyers to keep embryo-control issues out of the courts.
Jason Hopper, a lawyer in Noblesville, Ind., said that several months ago, he reached an out-of-court agreement over preserved embryos on behalf of a man who didn't want his ex-wife to use them. The agreement says the embryos for now will stay frozen, and exposes the fertility clinic to legal liability if they are used without the man's consent.
"It's impossible to say how an Indiana court would rule on this issue," said Mr. Hopper, "so we were happy to resolve it in that fashion."
Some family-law practitioners say new laws may be needed. "The law has to do better keeping up with technology, and if it means legislators getting in and dealing with some difficult issues, so be it," said Lee Rosen, a divorce lawyer in Raleigh, N.C.