THE ETHICS COLUMN
Embryos On Ice
By Jacob M. Appel, MD, JD
I will confess—much to the amusement of my medical students—that I had never heard of television actress Sophia Vergara until May 2015 when she became embroiled in a public legal feud with her ex-fiancé, Nick Loeb, over the fate of two frozen embryos the couple created together via in vitro fertilization. Vergara aptly stars in a show called Modern Family, but after splitting with Loeb, who happens to be of the wealthy Loeb and Lehman families (which I had heard of), she refused her ex’s request to thaw the embryos so he might have them implanted in a surrogate. The pair reportedly had signed a contract stating the embryos “could only be brought to term with both parties’ consent”—although the document apparently failed to state explicitly what was to be done in the absence of such consensus. In January, a California court will decide at trial whether this contract is enforceable.
Vergara and Loeb are certainly not the first former couple to battle over frozen embryos. As early as 1992, the Tennessee Supreme Court in Davis v. Davis confronted a case where an ex-wife wanted to donate frozen embryos to a third party, while an ex-husband did not. The court in that matter offered several valuable observations that might help guide future cases. First, the justices observed that embryos should not be thought of as either people or property, but as belonging to an “interim category that entitles them to special respect because of their potential for human life” and therefore worthy of distinctive respect in the absence of competing rights or interests. Second, the court found that in the presence of a prior agreement of the divorcing parties, courts should enforce such an agreement. Such an approach ensures stability and fairness between parties, while preventing so-called Monday Morning Quarterbacking.
More challenging is what should be done with embryos in the absence of such prior agreement. One view generally favors the partner who objects to procreation, arguing that the right not to be a parent is of greater importance to privacy than the right to produce offspring. It should be noted that this approach may favor individuals (often men) with longer procreative lifespans and hence more second chances to sire biological children. Another view (adopted by a few state courts, but not California’s) carves out an exception for “last chance” parenting, so that if a party is no longer fertile (eg. beyond menopause or sterilized through cancer treatment), her preference to procreate should win out. Loeb has never alleged such circumstances. Rather, he has written that “keeping the embryos frozen forever is tantamount to killing them.” (This is a logically troublesome stance: At what point in time, one might ask, does this “killing” occur?)
What is lost from this entire debate, unfortunately, is the irrational primacy it places upon having genetic children. Might I humbly suggest that Loeb use his vast resources to adopt a pair of children in need of a safe, stable home? That will enable him to be a father, while Ms. Vergara can restrict her participation in a “modern family” to the airwaves. #