The Parent Trap:Uncovering Judicial Bias in Frozen Embryo Disputes

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The Parent TrapUncovering Judicial Bias in
Frozen Embryo Disputes

• Ellen Waldman
• Thomas Jefferson School of Law

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(No Transcript)
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The Plot

• Couple Marries
• Couple Pursues Fertility Treatment
• Couple Divorces
• Couple Disagrees Regarding Fate of Frozen Embryos

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Permutations on Basic Plotline

• Gender of parties desiring custody
• Whether fertility treatment successful
• existence of a contract specifying disposition

• Nature of legal analysis- constitutional,contractu
  al, public policy
• family law precedent in state

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End Result in Each Case

• Party Seeking Embryo Destruction Wins
• Party Seeking Custody of Embryos to (in most
  cases) Obtain Genetic Parenthood Loses
• Why?

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Davis v. Davis (Tenn. 1992)

• Six IVF attempts
• Five ectopic pregnancies
• adoption attempted
• at divorce, Junior (husband) wants embryos
  destroyed Mary Sue wants to attempt implant

• Embryos due special respect
• Dispositional agreements should be enforced
• Ordinarily, party
• wishing to avoid procreation should prevailif
  reas.possibility of achieving parenthood exists

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Kass v. Kass (New York,1995)

• Egg retrieval 5 timesegg transfer 9
  timesattempted surrogacy with sister
• 4 consent forms-touched on disposition
  ambiguously

• Court engaged in contract analysis
• Ignored clause that dealt with divorce found
  that clause dealing with death.. or other
  unforeseen circumstances applied

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A.Z. v. B. Z. (Mass. 2000)

• Six in vitro procedures, two ectopic pregnancies
• one procedure resulted in twin daughters
• consent form says in event of divorce, wife gets
  excess frozen embryos

• Court states the process by which forms signed
  problematic
• Regardless of procedure, contract whereby one
  becomes a parent unwillingly is against public
  policy

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A.Z v. B.Z. reasoning

• As a matter of public policy, we conclude that
  forced procreation is not an area amenable to
  judicial enforcement
• no legal claim for breach of promise to marry
• surrogacy contract must have period during which
  birth mother can change mind
• contract requiring conception or abortion
  unenforceable

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J.B. v. M.B.(N.J. 2001)

• Court weighs right to procreate versus right not
  to procreate
• Davis presumption applies
• M.B. can still procreate
• J.B.s right to avoid procreation trumps

• One in vitro procedure-one daughter seven excess
  embryos
• Wife wants embryos destroyedhusband wants to
  donate to infrertile.
• Consent form says-in event of divorce, IVF center
  keeps embryos

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J.B. Reasoning

• J.B.s right not to procreate may be lost
  through attempted use or through donation of the
  preembryos. Implantation, if successful, would
  result in the birth of her biological child and
  could have life-long emotional and psychological
  repercussions.genetic ties may form a powerful
  bond even if the progenitor is freed from the
  legal obligations of parenthood

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Assumptions Embedded in Judicial Reasoning

• Biological Parenthood generates Psychological
  Parenthood
• Objecting Biological Parent will either feel
  compelled to play a parental role, or will suffer
  from feeling a strong tie to biological offspring
  without being a significant part of that
  offsprings life
• Reasonable opportunities for other parent to
  achieve parenthood exist

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Does Biological Parenthood Beget Psychological
Parenthood

• Phenomena of Disappearing Dads
• nonresident biological dads begin
  invested-investment declines over time
• Fragile Families data-40 nonresidential dads
  uninvolved at birth

• Factors
• residential proximity
• mothers education
• new partner
• mother-father relationship

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Findings from sociologists studying parental
involvement

• Furstenburg-A mans allegiance to his children
  is maintained in part by the bond established
  with his childrens mother. When that bond
  dissolves, men sometimes have difficulty
  establishing a direct relationship with their
  children.
• Seltzer- noncustodial parents discard ties to
  their biological children with divorce, and the
  ties are replaced through remarriage

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Solutions?

• Abolish presumption in favor of right to avoid
  procreation
• Approach cases contextually- each case individual
  factors to be considered
• Judges should recognize own transference
• Dispositional Contracts should be enforced?