Frieda and Fred, married for eight years and in that time have unsuccessfully tried to conceive a child. Last year, the couple underwent in-vitro fertilization and have stored for implantation six fertilized embryos at a Massachusetts clinic. However, shortly after, the couple’s relationship deteriorated and Fred filed for divorce. Frieda wants to use and implant the embryos, hoping to have children in the future. While Fred wants to destroy the embryos and does not want to be a parent.
How should we resolve this issue? Should we consider embryos human, raising complex custody issues and invoking the “best interests of the child” analysis? Alternatively, should we view them as marital property, subject to equitable distribution? Or do they occupy a position in-between, requiring an entirely new legal standard for classification and treatment?
The Massachusetts case of A.Z. v. B.Z. involved just this question.[1] In that case, a couple married in 1977 faced difficulty conceiving a child. They underwent in-vitro fertilization. The IVF procedure yielded embryos, some of which were implanted. In 1991, the wife gave birth to twins. However, the clinic froze and stored the remaining embryos for future implantation. The couple signed an agreement with the clinic. If they separate, the wife will receive custody and control of the embryos.
In 1995, unbeknownst to the husband, the wife sought to thaw and implant one of the vials of frozen embryos, as she desired to have more children. The husband learned of the procedure performed (which did not succeed) when he received a notice from his insurance company. By that time, the relationship between husband and wife had deteriorated, and the couple had separated. One more vial containing four embryos remained frozen in the clinic. The husband sought an injunction prohibiting the wife from using the embryos in the future. The wife sought to have the ability to use the embryos at a later date, should she desire to do so.
The Probate and Family Court judge granted the husband’s request for an injunction. On appeal, the Supreme Judicial Court affirmed. The Court noted that “even had the husband and the wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen preembryos, we would not enforce an agreement that would compel one donor to become a parent against his or her will. As a matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement. It is well established that courts will not enforce contracts that violate public policy.” [2]
In essence, the Court considered two competing privacy rights: the right to become a parent and the freedom to avoid becoming one. The issue is a tough one: how does one weigh the importance of allowing one spouse to procreate against the importance of not forcing the other spouse to become a parent? Ultimately, the Court ultimately makes a decision in favor of the parent. The parent argues that he should not be forced into parenthood against his will.
The law regarding the use, custody, and control over fertilized embryos remains unsettled, and many other questions will likely arise in family courts across the nation in the future. For example, can a woman legally and ethically transfer the embryos to another woman, such as her husband’s new partner? Can someone devise the embryos to another person after one or both spouses’ deaths? What will happen if the cryogenic storage fees are unpaid for a period of time—what obligations does the clinic have in this regard? It is likely that such questions and many others will be faced by the courts in the future.
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[1] A.Z. v. B.Z., 431 Mass. 150 (2000).
[2] Id., at 159-160.