Frozen embryos should be granted stronger legal status than “marital property”
An estimated 1 million cryogenically frozen embryos sit in storage facilities in the United States. This number grows each day. Embryos are created and frozen when a couple, after struggling with infertility, decides to perform in vitro fertilization (IVF). In this process, a man and woman create multiple embryos together and implant a small percentage of them in the woman's uterus, depending on the age of the woman receiving the implantation.
If the implantation attempt is successful, couples must decide what to do with their “leftover” embryos. They can implant more of the embryos, discard the embryos, donate them to another couple struggling to conceive, or donate them for use in research; these embryos sit in storage (usually for a fee) until the couple makes their decision.
What happens when a couple separates but still has embryos sitting in storage? This question has divided courts across the country and needs an urgent answer.
In the case of McQueen v. Gadberry in 2015, the Missouri Court of Appeals held that frozen embryos were “marital property” under the law. Jalesia McQueen sued her former husband Justin Gadberry when he refused to consent to McQueen implanting two embryos the couple had leftover in storage after a successful implantation gave them twin boys. Gadberry’s attorney argued that his client “should not be forced to become a parent against his will.”
Gadberry had consented to creating the embryos with McQueen. In consenting to the IVF procedure, did Gadberry already consent to becoming a parent? Missouri decided that he did not and its ruling did not favor implanting the embryos. McQueen’s lawyer used the Missouri law that affirms life begins at conception to argue in favor of implantation, but was unsuccessful.
The Illinois case Szafranski v. Dunston reached a different decision. Jacob Szafranski sued his former girlfriend Karla Dunston for custody of their leftover embryos without the desire to be a parent. The Illinois Court of Appeals favored Dunston’s desire to implant the embryos over Szafranski’s desire against parenthood on the grounds that Szafranski already consented to become a parent when he agreed to create and freeze embryos with Dunston. Dunston also had medical issues that suggested IVF might offer the only chance for her to become pregnant. These arguments made a difference in the court favoring implantation.
Cases like these are only a few examples of the ways in which custody battles over frozen embryos are disputed and decided by courts. There are generally three ways these cases are decided:
1: The embryos are treated as “marital property” and awarded to the party against implantation.
In divorce proceedings the legal term “marital property” also refers to houses, cars, or other objects that the couple owned jointly before their divorce. Human embryos deserve a higher legal standing than houses or cars.
2: Embryos are treated with similar legal rights as humans and awarded to the party favoring implantation.
By allowing one party the opportunity to implant the embryos, this option gives them the best chance to develop to term and thus best acknowledges their dignity. Further, this option upholds the notion that both parties consent to eventually become parents of all frozen embryos that they create through their action of creating them alone.
3: Most often, the embryos are deemed “property of a special character” and are destined to wait in storage until the couple can agree on whether or not to implant them.
This lukewarm decision does not actually solve any issues and usually frustrates both parties. Most fertility clinics do not keep track of the date their embryos were admitted to storage, but it is likely that some embryos frozen in 1992 still sit in storage today, awaiting a decision to be reached regarding their implantation.
There is currently no concrete solution for courts to turn to when they are met with a custody dispute over frozen embryos. Most judges churn through previous cases to try to find a solution and will likely pick one of these three, but there are no state or national statutes to instruct judges on how to handle these embryo dispute cases.
One solution to this problem could be a law which treats the battle over the embryos similar to a child custody battle and awards the embryos to the party that favors implantation, and would allow the embryo a chance to develop to term. In this case, the party opposed to implantation could be exempted from legal parenthood if desired. This hypothetical law would support the sanctity of human life and would allow more individuals like McQueen to implant their “leftover” embryos and save at least some of the 1 million embryos suspended in -329° F liquid nitrogen. This law might not save all embryos, but it would at least ensure embryos with one parent willing to implant them are given a chance to develop to term.
Safeguarding the lives of these human embryos should be a priority of every Catholic citizen because “the inalienable right to life of every human individual is a constitutive element of a civil society and its legislation…[and] the embryo must be defended in its integrity, cared for, and healed as far as possible, like any other human being” (CCC 2273-74). A law favoring implantation is only one possible solution to the problem that hinders frozen embryos from implantation, but such a law could be one small step in an effort to allow these embryos the chance to develop to term and protect the sanctity of life.
Margaret Mathis is a sophomore studying Classics. She plans to become an attorney so that she can protect the dignity of human life at all stages. Reach out to her at mmathis@nd.edu.