Ethical issues in the disposition of frozen embryos by divorcing couples
By Eugene F. Diamond, M.D.
Member, American Bioethics Advisory Commission
When the “right to privacy” was discovered in the “shadows” of the Constitution’s meaning (Griswold v. Connecticut) and the “right to abortion” was discovered in the “penumbras” of the same august document in Roe v. Wade we might have prepared ourselves in the medical profession to be confronted by other ephemeral rights that would have to be dealt with and presumably honored in our dealings with patients.
The right “not to reproduce” is the latest of such previously unrecognized points of law which has arisen in the context of disputes related to the disposition of frozen embryos generated by couples who have divorced prior to implantation1, 2. The so-called “right not to reproduce” was logically and obviously effectuated in the pre-IVF era by choosing celibacy, sterilization or some effective means of birth control. The American Bar Association Section on Family Law in proposing a policy for the disposition of frozen embryos has stated with what would seem biologically to make eminent good sense “the right not to procreate is extinguished at the moment the embryo is created. This supporting statement is used to buttress a proposed ABA policy which would declare with what would seem again to be impeccable logic “the party wishing to proceed in good faith and in reasonable time with gestation to term and to assume parental rights and responsibilities should have possession and control of all the frozen embryos.”
Reminiscent of the Wizard of Oz’s declaration to Dorothy to “pay no attention to the man behind the curtain” is the failure of Forster et al2 and Robertson1 to admit that there is an existing third party who must be taken into consideration when these matters are litigated. Surely all of the arguments as to when life begins are rendered moot when we are able to make life begin in a Petri dish in the IVF procedure. The embryo is thus an existing human being despite attempts by the authors to dehumanize it as “genetic material” to be “passed” or “gametes” to be implanted (obviously gametes cannot be implanted unless and until fertilization occurs). Human being are unique and irreplaceable. Another human being, either existent or theoretically to be conceived does not replace the embryo whose life is ended by what Robertson calls a “policy of non transfer or discard.”
There is a cavalier discussion of the future procreative ability of the parent whose petition to preserve the embryos is rejected. Unless she is a woman over 40 or he an azospermic male, it is stated that no injustice is being done because they can just go ahead and reproduce again. No obstetrician with empathy would attempt to assuage the sorrows of the mother of a stillborn to “go ahead and have another one.” Obviously if there was a recourse to IVF in the first place, there was a problem of infertility in one or both partners. Couples don’t choose to spend thousands of dollars on IVF willy nilly if they were able to “reproduce genetically with another person” without difficulty.
It is interesting that the alleged “right not to reproduce” does not conjure up a corollary “right to reproduce.” The same father (as in the Davis case) who can overrule his wife’s desire to preserve their progeny after IVF cannot, in another context overrule his wife’s decision to abort their child. In the real world it is impossible to “use one’s unique genetic material to create a child against one’s will.” The father must willingly cooperate since there is no way to steal his sperm. It is not at all unusual for a father to wish to be rid of his child after it is conceived either extramaritally or within marriage. Does anyone seriously argue in that kind of situation that he can assert that the continued existence of the child is “violation of his bodily integrity and personal choice”?2
It is clearly possible for a parent offering a child for adoption to waive all future visitation rights and to be relieved of future responsibility for child support. Surely similar disclaimer could be legally formalized in the IVF conflict situation. It is problematic to assert as Forster et al have done2 that a man appropriately should have a “right not to reproduce” which precludes and transcends his ex-spouses ability to carry their child and raise it individually or with another man.
Prior agreements at the time of application to the IVF clinic would, as Robertson states, solve some of the problems. It would prevent such anomalies as the New York Court of Appeals hold in the Kass v. Kass case that the wish of a divorcing husband to have embryos “donated to an IVF clinic for research” should prevail over the wife’s desire to use them for reproduction. The use of embryos for “research” is arguably against the law or certainly contrary to the 1995 Federal Regulations on the use of embryos for experimentation.
- Robertson, J.A., “Disposition of frozen embryos by divorcing couples without prior agreement,” Fertility and Sterility, June, 1999.
- Forster, H., et al, “Comment on ABA’s proposed frozen embryo disposition policy,” Fertility and Sterility, June, 1999.