[cross-posted at HealthLawProfs blog and orentlicher.tumblr.com]
For the second time, a state court of appeals has given a woman permission to use frozen embryos over the objections of her former partner who supplied the sperm. In both cases, the new one from Illinois, the previous one from Pennsylvania, cancer chemotherapy left the women infertile and therefore unable to create new embryos with another man.
The results seem reasonable. As a general matter, courts have not been willing to impose unwanted parenthood on people who participate in the creation of frozen embryos via in vitro fertilization (IVF). However, when the frozen embryos provide the only chance for one of the embryo creators to have a genetically-related child, the desire of one person to have a child can trump the desire of the other person not to have a child.
Should the objecting former partner be responsible for child support? In both cases, the courts left the question open since it was not at issue. Indeed, in the Pennsylvania case, the woman agreed not to pursue child support from her ex-husband in the event she gave birth with one of the embryos. If the issue should arise, it makes sense to absolve the objecting former partner from any parental obligations, just as sperm or egg donors are routinely absolved of any parental obligations.
The Illinois court also based its decision on the trial court’s view that the man had agreed earlier to let his former partner used the embryos. Some other courts also have taken the position that advance agreements should bind former couples when they disagree about the disposition of their frozen embryos. This justification seems more problematic than the last-chance justification. The law does not in other circumstances bind people to advance agreements about procreation (e.g., whether to put a child up for adoption or whether to have an abortion), and that principle makes sense as well for frozen embryos.