Courts are increasingly called on to decide who should get custody of frozen embryos. Their decisions will touch on both abortion and IVF.
This NYT oped discusses some of the issues.
Are Embryos Property? Human Life? Neither? By Anna Louie Sussman
"For over a century, courts generally did not grant personhood or independent rights to embryos or fetuses in utero. An 1884 decision by Oliver Wendell Holmes, at the time a Massachusetts Supreme Court justice, held that when a pregnant woman slipped and fell on a road, resulting in the loss of the fetus, no claim could be pursued on behalf of the fetus against the town; he voiced skepticism about “whether an infant dying before it was able to live separated from its mother could be said to have become a person recognized by the law.”
"Once embryos began appearing ex utero, however, courts and legislatures were forced to reckon with their legal status in novel scenarios — notably in divorce cases in which the parties disagreed on how to deal with frozen embryos created during the marriage. The answers courts have come up with for how to view embryos have been all over the map, ranging from seeing them as property to declaring them, in the Alabama decision, “unborn children.”
...
"Embryo custody cases, as they’re sometimes termed, were typically resolved along similar lines — that parenthood should not be forced on a person who does not want it, with a few exceptions, said Ellen Trachman, a Denver-based lawyer specializing in assisted-reproduction-related cases. That principle was challenged in 2018, when the Arizona State Legislature passed a law requiring judges to award disputed embryos “to the spouse who intends to allow the in vitro human embryos to develop to birth,” regardless of any contracts signed by both parties
...
"The murkiness of embryos’ status has sent courts on strange detours in their legal reasoning. In a 2023 Virginia case a judge was tasked with deciding whether two frozen embryos should be awarded to Honeyhline Heidemann, who wanted to implant them, or kept frozen, per the wishes of her ex-husband, Jason Heidemann. Ms. Heidemann asked that the embryos be considered property, so they could be assigned to her like any other salable item. Mr. Heidemann said each was unique and nonfungible and thus could not be treated as personal property.
"The case, as Leah Libresco Sargeant wrote, turned embryos into “Schrödinger’s persons,” resulting in “one parent bizarrely needing the embryos to be considered persons in order to prevent them from being born and the other parent needing to argue the children were property in order to let them be born.”
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Earlier:
Tuesday, February 20, 2024 Frozen embryos are children: Alabama Supreme Court ruling
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