Frozen on the Dock of the Bay
October 08, 2015
by Professor Bonnie Steinbock, Ph.D., The Bioethics Program
Yet another dispute by a divorced couple over what to do with their frozen embryos is in the news. This one may lead to new legal rules over how to decide such cases.
Dr. Mimi Lee was diagnosed with breast cancer shortly before her marriage to Stephen Findley in 2010. Informed that pregnancy would be unadvisable, as Dr. Lee would have to take a drug that could harm the fetus, the couple created five frozen embryos. Mr. Findley began having doubts about the relationship shortly after they were married, and asked for a divorce in 2013. The divorce became final in April 2015.
California law requires fertility clinics to offer couples creating frozen embryos a consent agreement about their disposition in case of death or divorce. The consent agreement signed by the couple stated that the embryos were to be destroyed if the couple divorced. Part of the dispute is about the status of the consent agreement. His lawyers say that it is a binding legal contract. Her lawyers regard it as a mere advance directive that either side could change. Dr. Lee also maintains that she merely skimmed the agreement, which she signed at a turbulent time in her life.
Many people think the issue should be resolved solely by looking at the contract. The advantage of this approach is that it is definite and provides security for the parties. However,sometimes people should be able to change their minds, even if they have signed a contract. Marriage is an example. We allow people to divorce because the consequences of forcing couples to remain legally tied are horrendous. Should people be allowed to change their minds regarding the disposition of frozen embryos? My answer is a qualified yes.
In frozen embryo disputes, two kinds of procreative liberty are implicated: the right to have a child and the right not to have one. In general, the right to have a child (or more precisely, not to be prevented from trying to have a child) is important because of the deep desire of many people to have a child and the emotional pain they experience when this desire is thwarted. The right not to have a child is also important to individuals’ well being. It is the basis for the right to contraception and abortion. However, it is not limited to these. In one of the first frozen embryo cases, Davis v. Davis, Junior Davis expressed the distress he would experience if he were forced to be a biological father when he would not be a full-time parent. The child of divorce himself, he did not want to bring a child of a failed marriage into the world.
In my view, the consent agreement should be upheld if the one wishing to use the frozen embryos could have a child with someone else. But what if the frozen embryos represent “the last chance to have a child”? Dr. Lee is now 46 years old. Her chances of having a baby with someone else are virtually nil. (Her chances of having a baby using the frozen embryos are not great either. The clinic estimates them at 20 percent.)
In last chance cases, I think a balancing approach should be used. It requires the judge to weigh the relative harm that would be inflicted on each party, in the circumstances. Here, the motives and reasons of the parties become paramount. The desire to avoid child support might be outweighed by the other party’s desire to have a child. However, Mr. Findlay says his motive is not merely avoidance of child support. Like Junior Davis, he asserts a sincere desire not to bring a child into the world from a failed marriage. In addition, he alleges that his ex-wife’s attitude toward the embryos is not purely maternal, that in a discussion of their assets, she brought up the embryos, saying, “How much are they worth? So do I get $1 million for them, $2 million for them or for each one?”
No one should think such cases easy to decide, but a balancing approach, limited to “last chance” cases, shows greater respect for the procreative liberty of both parties than a slavish adherence to contract.
Maura Dolan, “Ex-husband in frozen embryo case testifies he felt ‘stepped on’,” http://www.latimes.com/local/lanow/la-me-ln-couple-embryos-20150714-story.html
Maura Dolan, “S.F. judge has tough questions for both sides in frozen embryo case,” http://www.latimes.com/local/lanow/la-me-ln-couple-frozen-embryos-20150804-story.html
Maura Dolan, “Embryo battles are likely to get a precedent in San Francisco couple’s case,” http://www.latimes.com/local/california/la-me-embryo-20150920-story.html