[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.
Thanks David. As you know I’ve written a lot about these kinds of cases and have strong views. But on this case specifically two things worth mentioning (1) The finding that an oral agreement between the parties displaced the embryo disposition agreement at Northwestern (in the way they phrased the ability of subsequent agreements to alter matters). This may have just been drafting by the clinic, but does seem to be worrisome to have these things turn on oral agreements that are going to invite litigation about what was said to whom, when, and about what. (2) The balancing approach discussion in the case strikes me as completely dictum in light of the finding of the presence of an the oral agreement, though dictum the court went out of its way to stick in. Did you see it differently?
Glenn, thanks for your very helpful comments. As you observe, the Court’s reliance on the oral agreement was troubling. Relying on principles of contract causes enough problems without the additional problems of trying to determine whether an oral contract was formed. And you are correct about the balancing test discussion being dictum, but I suspect the court would not have sided with the woman had it not been her last chance. I also think the last chance theory will be more persuasive than the contract theory with other courts, including the Illinois Supreme Court. It will be interesting to see if any courts enforce an advance agreement in the absence of a last chance situation to let someone use frozen embryos over the objection of the former partner. Of course, in the absence of a last chance situation, efforts to overcome objections of a former partner may not occur very often.