The Perils of Assisted Reproductive Technology #4

S.F. woman who sought to have embryos preserved loses legal case

A judge ruled Wednesday that the frozen embryos of a divorced San Francisco couple must be thawed and destroyed despite the ex-wife’s desire — over her former husband’s objections — to use them to become pregnant.

The decision by Superior Court Judge Anne-Christine Massullo clarifies in an era of emerging reproductive technologies what happens to frozen embryos in California when one person in a dispute wants them and the other one doesn’t. The judge said that directives signed by the couple agreeing that the embryos be “thawed and discarded” in the event of a divorce must be respected.

“It is a disturbing consequence of modern biological technology that the fate of the nascent life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles,” Massullo wrote in an 83-page tentative ruling. “However, only an infinitesimally small percentage of the four million frozen embryos currently in storage in the United States are destined to be implanted and brought to life.

“There must be rules to govern the disposition of the rest.”

  • Presumably, a contract between a husband and a wife that said their born children should be killed in the event of a divorce would be unenforceable. Instead of treating embryos as the human beings they are, our law treats them as property. The judge in this case says the directives must be respected. I would be interested to know if there is any legal basis on which a judge could say such directives cannot be respected because they involve the killing of a human being.
  • It is not disturbing that the fate of the embryos must be determined by legal principles, rather, it is disturbing that our legal principles do not provide a right to life for humans at every stage of development. A consistent pro-life position requires opposition to IVF.

Lee’s therapies eradicated the cancer, but her marriage to Findley did not survive. Findley filed for divorce in August 2013. Lee, wanting to take advantage of her last chance to have biological children, brought the matter of the frozen embryos to court, arguing that the agreement they had signed was not binding and violated her right to procreate.

  • Mimi Lee already had children. She successfully procreated.
  • Just imagine a man trying to tell a woman that she can’t have an abortion because he has a right to procreate.
  • Of course we don’t have a right to procreate. You have to be physically able to procreate and have a willing partner.

She testified in court that the agreement was hastily signed and that such directives are not set in stone.

Life and death decisions should not be done hastily. Perhaps the silver lining is that this woman will never be a mother.

Magnus said the courts have been reluctant to enforce parenthood on someone who does not want to be a parent and have put great weight on contractual agreements made in advance. “It’s just hard to imagine any circumstance in this case where the court would have ruled differently than it did,” said Magnus, who directs the Stanford Center for Biomedical Ethics.

The obligatory bioethicist appears. Lee and Findley were already parents. They “forced” parenthood on themselves.

“The fact that material is cryogenically preserved should not give one party the ability to force the other into unwanted parenthood or to have to relinquish their right to their biological child,” Silberberg said in a statement.

Note that embryos are considered nothing more than “material” by Silberberg, who makes the same errors concerning parenthood as Magnus.


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