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It was a short news item, buried on page 19 of the April 11, 2007 edition of the Chicago Tribune, dateline Strasbourg. “Woman loses rights to frozen embryos.” Another predictable story on stem cell research in France? But, this was not a French biotech dispute. Natallie Evans is a British woman who was left infertile after ovarian cancer treatments. Prior to her ovaries being removed, she and Howard Johnston, her fiancé, created embryos via in vitro fertilization, and had them frozen.
The European Court of Human Rights ruled that she had no right to implant the embryos. No right, because her former fiancé objected. The Grand Chamber—17 judges in all—agreed with Britain’s law that requires the consent of both parties at every stage of IVF.
Ms. Evans has no right to an appeal. By court order, her embryos will be destroyed, because Mr. Johnston refused to consent to continued cryopreservation. "I am distraught. It is very hard for me to accept that the embryos will now be destroyed and I will never become a mother," she said at a press conference.
Natallie’s desire to preserve the embryos—who may have her nose or color of eyes—is a powerful expression of what Gilbert Meilaender calls the drive to have “a child of one’s own.” The human significance of biological ties to both ancestors and descendants cannot be readily ignored. But, ignore it, the law routinely does. Well, not precisely ignore, but it does manifest a particular bias about the questions of parenthood and children.
This small tragedy illustrates the inexorable trend of our time: the presumption against raising children. In the United States, reproductive rights have legal origins in a series of cases that acknowledged the rights of couples to marry, educate their children, and direct their religious training. These family rights existed long before the Constitution, and cannot be impaired by the government, the Court said. In 1942, the Court told the State of Oklahoma it could not forcibly sterilize certain felons, and said that marriage and procreation are “one of the basic civil rights of man.” Two decades later, in the landmark Griswold .v Connecticut (1965) decision, Connecticut was chastised for its rarely enforced law banning the distribution of contraceptives to married couples. The Court decided that, although it does not appear in the text of the Constitution, there exists a right of privacy that protects contraceptive use by married couples. A few years later, the Court spoke again, this time abandoning any pretense that decisions about contraception were intrinsic to marital privacy. In Eistenstadt v. Baird (1972), the Court said that “if the right of privacy means anything, it means the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
These two contraception cases formed the core of the Court’s stunning ruling the following year in Roe v. Wade. Here, it turned out that the right of privacy applied both post-contraception and post-conception. The effect of the Court’s ruling is that a woman has a virtually limitless right to abortion for any or no reason, throughout her pregnancy. Marriage, spacing of children, their religious and academic education—all these were tossed out the window of legal justification. The core constitutional “reproductive right” is a right not to give birth to a child that already exists.
The legal reasoning behind abortion rights found its way into cases involving IVF and frozen embryos. In 1992, the Tennessee Supreme Court ruled in a divorce proceeding that Mary Sue Davis had no right to custody of embryos created during her marriage. Why? Junior Lewis Davis, her ex-husband, opposed it. She first wanted to implant them, and later hoped to donate them to a childless couple. Mary Sue lost.
“Reproductive rights,” the basis for legal rulings in cases involving contraception, abortion, and custody battles over frozen embryos, bear a superficial connection to procreation, “the entire process of bringing a new individual into the world” (On-Line Medical Dictionary). The practical effect of these court cases is that the party desiring to have children loses. It is about the right not to raise a child.
The common thread among these cases is an implicit presumption that if the embryo is desired by both parties, she may be allowed to develop and grow. We have all heard that “every child should be a wanted child.” But, if a known biological father (in contrast with an anonymous sperm donor) objects to implantation of his embryo, the law favors his “no, thank you” decision. Thus, men cannot object to an abortion decision (fetus dies), but they can object to an implantation decision (embryo dies). The outcome is the same.
Objection to parenthood is a powerful argument. So powerful, in fact, that courts have turned mental somersaults trying to accommodate it. In the stranger-than-fiction case of Jaycee Buzzanca, a California judge wrestled with this infant girl’s legal status. John and Luanne Buzzanca entered an arrangement with a woman who was to be their gestational surrogate, implanted with an embryo created by donor egg and donor sperm. Before the baby was born, the couple split up. John disclaimed responsibility for the newborn, as did the surrogate mother. The judge ruled that Jaycee had “no legal parent.” Five people were involved in her creation; not one had responsibility for her future.1
We have reached a state where post-conception parenthood is no longer an obligation, but an option. Frozen embryos are not creatures with a destiny, but creations at our disposal.
The law accommodates culture’s subordination of procreation to biotechnology. The technology of assisted reproduction enables us to make babies when “old fashioned” methods don’t work. It also permits us to be selective parents: we can create embryos in a variety of ways, and bring them to term at a time and in a womb of our choosing. And if somewhere along the way, we decide we’re not interested in being parents any more, the laws gives us a “Get out of jail free” card.
So what? It’s a couple’s private decision. Why shouldn’t the law honor a change of mind about parenthood?
These decisions, backed up by judicial power, have implications far beyond the immediate parties to the case. The pronouncement that Ms. Evans’ embryos must be destroyed, even though they embody her last hope for bearing a child of one’s own, says something profound about our notions about all embryos. It tells us that these are not human entities with a unique and embodied destiny, but mere possibilities, products to be arranged at will.
The legal status of frozen embryos is that they are neither person nor property. Caught in moral limbo, their future development is independent of their unique genetic identity. It is contingent upon the desires, needs, relationships and current preferences of their creators.
So, you want to dabble in future parenthood via IVF, but you’re not sure? It’s okay. You can always change your mind. And the courts will back you up.
1Luanne Buzzanca assumed all responsibility for Jaycee’s care; the court imposed financial responsibility on John.