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Who owns frozen embryos?

How courts grapple with the right to, and right not to, have a child

California Embryo Bank Provides Donated Eggs For Stem Cell Research Photo by Sandy Huffaker/Getty Images

Who owns frozen embryos? That question is coming up for many after news broke that Modern Family actress Sofia Vergara is being sued by her own embryos.

This is the latest development in the dispute between Vergara and her ex-fiance Nick Loeb. Loeb had sued Vergara for the right to use the frozen embryos the two created when they were together. These embryos are created using in-vitro fertilization, or when egg and sperm are manually combined in the laboratory and then transferred to a uterus. Vergara, who has since married someone else, doesn’t want them to become children.

Now, a trustee is suing on behalf of the embryos “Emma” and “Isabella,” which are five days old developmentally. The idea is that they are the beneficiaries of money from a trust, and by not being born they cannot receive their inheritance. This is “highly unusual in trust law, and I would go so far as to say virtually unheard-of,” says Naomi Cahn, a professor at George Washington University Law School who specializes in reproductive technology. Most likely, this suit will not succeed. But more disputes over frozen embryos may be coming as IVF becomes more common, and the courts need to adjust.

Legal experts like Cahn say not to expect a national law anytime soon. Family law is governed by the states, so the results of cases can differ depending on local laws. In Louisiana, for example, embryos are considered to be “juridical persons” and that’s why “Emma” and “Isabella’s” lawsuit was filed there.

Still, state cases influence each other, and a few suggest a rough consensus on this issue, says Kimberly Mutcherson, vice dean of Rutgers Law School. Of course, if there’s a contract, you follow it. But lacking an agreement, the main exception — meaning when the embryos are allowed to be used even when one person protests — is when the embryos are someone’s last chance to become a genetic parent. “This has been used for women in cases where they’ve had cancer treatment, so they’re really not going to be able to create new embryos,” says Mutcherson. (None of this applies in the Vergara case. The two had signed an agreement saying that the embryos could only be used with both people’s consent.)

Two key cases back this up. One 2015 case in Illinois, Szafranski v. Dunston, awarded embryos to a woman over the protests of her ex-boyfriend. Though the woman had adopted a child, the embryos were her last chance to have a biological child because chemotherapy had left her infertile. There was a similar case, and ruling, in the 2012 Reber v. Reiss lawsuit in Pennsylvania.

In those cases, the decision “stems from this long-standing societal push that says it’s really important for people to raise children with whom they have genetic connection,” says Mutcherson. Another factor is that, both times, the person asking for the embryos was the woman. A man might have more trouble winning a similar case. “It’s a reflection of the fact that we tend to think about motherhood differently than we think about fatherhood,” Mutcherson adds.

Arthur Caplan, a bioethicist at New York University, disagrees with these rulings. “I don’t think turning somebody into a parent against their will, even if that is your last chance, is the way to go,” he says. “I think it’s sad, but I wouldn’t still force somebody. The principle we want to keep in mind, particularly in this era as cloning moves forward, is ‘nobody makes you a parent without your explicit permission.’” Courts in a 1992 case in Tennessee, Davis v. Davis, agreed with Caplan. They allowed embryos to be destroyed over the objections of the wife. She wanted to use them herself or donate them to an infertile couple, but the courts ruled that the right of the man not to become a father against his will was more important.

It’s important to keep in mind during these discussions that there are big differences between destroying a frozen embryo and having an abortion, says Natalie Ram, a a professor of law focusing on bioethics at the University of Baltimore. Among other things, these embryos are usually frozen in the first week of development, much earlier than even the controversial proposed Ohio bill that would ban abortion at six weeks. Many of the embryos, even when implanted, fail to develop. Frozen embryos are much, much less developed than fetuses, which is the term used after about the eighth week after conception.

Also, many health and financial concerns around abortion do not apply. In all cases so far, the person requesting the embryos has said they don’t want the financial or emotional support of the other parent. The issue is not money or time, but how it feels to have someone with your DNA walking around. “Imagine someone taking a used tissue from you and using that to clone you,” says Caplan. “If you found out 20 years later, you’d probably be angry even if they didn’t ask you to provide support or be emotionally available.”

Ram, the Baltimore legal expert, points out that in all these cases the embryos were created with the full knowledge and consent of the two parties, so Caplan’s thought experiment doesn’t quite apply. But there are other issues to consider. One is how to classify embryos. Should family law apply, the same way it would for a custody battle? Or is the embryo just property, like a house? The courts have ended up saying “both,” designating embryos a sort of special property and using a combination of both types of law.

Though embryos are not fetuses, the battle over how they are used could end up affecting abortion law after all. Take recent developments in Texas, where state law now requires fetuses to be buried or cremated. This creates tension between pro-life advocates and people who create frozen embryos using IVF. People who oppose abortion think the fetus has a life and that women should bear the child, says Carol Sanger, a professor focusing on reproductive law at Columbia Law School.

“What’s peculiar about the IVF cases is the woman is trying to have a child, so she’s on the ‘right side’ of this, and yet the law is defining the aspects of the process of IVF as basically an abortion,” Sanger adds. She says that it’s possible that some “personhood amendments,” which classify fetuses and embryos as people, have failed to pass in part because they might criminalize aspects of IVF. Because the IVF failure rate is so high, many frozen embryos are created to increase the chance that even one will be successful.

For now, Ram hopes that high-profile cases like Vergara’s will lead people to be more careful about possible outcomes when considering IVF. “You need to get people to give some thought to what they think about the moral status of a human embryo and what, for them personally, are the stakes involved in having frozen embryos,” she says. “I would hope that most clinics are now trying to get their patients to think about these really difficult issues at the start of the process.”