That was the question put before a San Francisco judge who ruled this week that there are no take-backs.
Judge Anne-Christine Massullo was asked to consider the case of Dr Mimi Lee and Stephen Findley, who created, froze and stored embryos after Lee was diagnosed with breast cancer but before she began treatment. In the course of their efforts to preserve their ability to have a child together, they both signed off on the consent form presented to them by their fertility clinic, in which they stated that they had mutually agreed to have any remaining embryos destroyed should the two no longer be married.
The couple separated in 2013 and divorced in 2015, and they went to court over Lee’s desire to keep the embryos herself and use them to attempt a pregnancy.
In an 83-page decision, Massulo wrote: “It is a disturbing consequence of modern biological technology that the fate of nascent human life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles.” But it is perhaps even more disturbing to argue the opposite – that the embryos Lee and Findley created are, as Massullo implies, life just casually discarded because of the flippancy of the law.
This seeming form of reproductive policing – making women and men sign away their rights to their own genetic material – is actually a safeguard to ensure that women continue to be guaranteed basic reproductive rights and, indeed, rights to their own bodies and genetic material). Paradoxically, letting someone lay claim to embryos that they have legally consented to discard in the event of divorce is just one small step from stopping someone from being able to freely choose what exactly happens with and to their own bodies and healthcare decisions.
Earlier this year, actress Sofia Vergara faced a similar legal battle, when a judge ruled that the Modern Family star’s ex-fiance, Nick Loeb, had a right to sue Vergara for “custody” over their unused, frozen embryos that were created when the two were still a couple.
At the time of the Vergara ruling, Cecile Richards, the president of Planned Parenthood Federation of America and the Planned Parenthood Action Fund, said in a statement: “Every woman should be able to decide whether and how to have children, without coercion, shame, or judgment.” She added that litigation like that faced by Vergara constituted a form of “bullying” that attempted “to force someone to have children against her will ... These are deeply personal decisions for women, and they should be respected.”
And indeed, it seems to follow that Findley’s decision to not have a child with Lee should garner the same respect as Vergara’s decision to not have a child with Loeb. The alternative could be significant limitations on both women’s reproductive rights and on the ability of women and men to access reproductive assistance.
Too often, the questions surrounding the outcomes for unused frozen embryos feed directly into the debate about fetal “personhood” – the belief that legal rights should be extended to fertilized eggs and embryos. In recent years, many rightwing lawmakers have introduced legislation that would grant rights to embryos, which, though designed to criminalize abortion, would also make IVF treatment illegal as a result, since the process often creates embryos that would never be transferred or given the opportunity to continue their “life” at it were.
So, while Lee pleaded with the judge to let her have what she called “her babies”, had the judge ruled in her favor, those who oppose the procedure entirely would have had legal ammunition to challenge it, and women’s reproductive rights more broadly, in court.
Though Lee claimed in court not to have understood the legal papers she signed before undergoing IVF which forced the judge to rule in her ex-husband’s favor, as someone who’s undergone IVF, I find that a bit hard to believe. The Society for Assisted Reproductive Technology crafted a “declaration of intent” years ago that is made available to all of its member practices nationwide; few reputable practices would ever allow patients to undergo IVF without a similarly informed consent process.
Patients sign, in the presence of a notary, documents which explain what they would like to happen to any unused embryos under numerous circumstances, ranging from death to divorce to non-payment of frozen embryo storage fees.
The declaration of intent makes clear that the options for patients regarding unused embryos are “discarding the cryopreserved embryo(s)”, “donating the cryopreserved embryo(s) for approved research studies”, “donating the cryopreserved embryos to another couple in order to attempt pregnancy”, or “use by one partner with the contemporaneous permission of the other for that use”.
Furthermore, the declaration of intent is explicit in its statement that embryos “cannot be used to produce pregnancy against the wishes of the partner” – the circumstances in which Lee and Findley found themselves.
If you want children, being able to have them is a tremendous gift. If you want children and, for any reason, are unable to do so, the effect can be devastating, heart-breaking, agonizing, maddening. And so while, as someone who has struggled with infertility in my own right, I empathize with Lee’s desire to build a family on her own terms, I am relieved the judge on her case ruled how she did. To have allowed Lee to rescind her consent for the disposal of her embryos could have meant an all-out elimination of the reproductive rights and options of others.