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Latest Surrogacy News
When a couple divorces,
who owns the embryo?
June 2, 2000 By
Jessica Reaves
CNN
It's a perplexing
question, but one befitting our increasingly scientific
approach to parenthood: Who controls the fate of frozen
embryos? According to a New Jersey state appeals court
opinion handed down Thursday, the biological mother
maintains a constitutional right to decide what happens
to embryos extracted during an in vitro procedure. The
case, which draws on some of the most emotionally
charged aspects of life and conception, revolves around
a couple who conceived one child via in vitro
fertilization and stored the remaining seven embryos at
a facility that promised to destroy the embryos if there
was a divorce. The couple did divorce, and the
biological father sued for possession of the embryos. As
a strict Catholic who believes life begins at the moment
of conception, he equated the destruction of embryos
with the end of a life, and decided to take the embryos
back, apparently wanting to have them implanted in his
new wife. His ex-wife fought his case, arguing her right
not to have her biological children born without her
consent. And the New Jersey appeals court agreed with
her.
"Technology and science
are leaping way ahead of the law," says TIME legal
reporter Alain Sanders. "The law is struggling mightily
to catch up and to deal with these scientific
developments, all of which are putting strain on the
principle on which our legal system is based, which is
the notion of personal autonomy and personal
responsibility. These new technological developments
challenge the idea of personal autonomy and create a
situation in which a person may no longer control their
ultimate destiny."
In fact, it is the
notion of personal autonomy to which the New Jersey
court turned in deciding this case. The ruling calls on
language from Roe v. Wade, the landmark Supreme Court
case cementing a woman's sovereignty over her
reproductive capabilities. And while the cases are miles
apart in technical terms, they follow similar
philosophical paths, and raise equally fundamental
questions the problematic idea of "owning" an embryo.
In the end, however,
such cases may center around parental rather than
reproductive rights. After all, should a man faced with
a similar situation -- after a divorce, his ex-wife
decides to use the embryos he helped create to have a
child -- be thus compelled to become a biological
father? Other courts considering similar cases have
ruled consistently that no one, male or female, should
be forced into such parenthood without their express
consent. Both ex-wives and ex-husbands have been barred
from turning embryos from their former marriage into the
seeds of a new family without the consent of their ex.
And it would be a very big person indeed who could
stomach the idea of donating genetic material to a union
they may want nothing to do with.
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