Disputes over frozen preembryos & the "right not to be a parent".

• Author: Pachman, Tracey S.

1. INTRODUCTION

   In the past few decades, medical science has progressed at a breakneck pace to provide solutions that allow infertile couples to conceive and gestate their own biological children. Not surprisingly, the speed of these medical developments, which have altered the character of human reproduction, has left the U.S. legal system scrambling to create legal standards with respect to individual rights. An excellent example of this phenomenon occurs in the context of in vitro fertilization [hereinafter IVF], where several courts have developed guidelines to resolve frozen preembryo disputes. When these courts apply long-standing legal principles to the unique circumstances of disputes over control of frozen preembryos [hereinafter "preembryo dispute cases"], it may look like jurisprudence as usual. Yet, this line of cases demands intense scrutiny, particularly from feminist scholars. The holdings of the preembryo dispute cases are molding reproductive rights in our legal system to accommodate new understandings of re production. Unfortunately, the shape that these rights are taking does not wear well on women. In order to understand how cases involving the reproductive innovation of IVF are directing the course of reproductive rights in the United States and impacting women, it is important to first understand the IVF process and how it generates disputes.

   This article explores the "right not to be a parent," the controlling standard by which several courts have decided disputes over frozen preembryos. In Part II, I describe both the IVF process and how courts have responded to disputes that have arisen from it. Part III of this article reveals that the "right not to be a parent" has weak, if any, footing in constitutional and family law. Part IV of this paper demonstrates that although it appears to be gender-neutral, the application of the right not to be a parent in preembryo dispute cases effectively discriminates against women by failing to recognize contributions and rights of women in the IVF procedure. Furthermore, this Part discusses how the arbitrary decision to focus on the future benefits and burdens of parenthood, rather than the past contributions to the couples' efforts to achieve parenthood, devalues the enormous contributions of women to the IVF procedure and thereby discriminates against women in preembryo disputes. Finally, I propose a new st andard that combines freedom to contract with acknowledgment of women's more significant role in the IVF process, to allow resolution of preembryo dispute cases in a manner that preserves women's personal and reproductive rights.

2. IN VITRO FERTILIZATION AND TUE COURTS A. In Vitro Fertilization

   In vitro fertilization is a multi-step process through which a man's sperm and a woman's egg are combined in a laboratory dish where fertilization occurs. (1) The resulting preembryo can then be transferred to a woman's uterus, where it may result in pregnancy and birth. (2) In vitro fertilization tends to be used by women who have blocked, severely damaged, or absent fallopian tubes, but it is also used to overcome other forms of infertility, including male fertility problems or infertility caused by endometriosis or by an unknown cause. (3)

   Before fertilization can take place, eggs must be harvested from a woman's ovaries. To prepare for this process, a woman undergoes approximately two weeks of intensive drug therapy intended to stimulate ovulation, as well as tests and ultrasounds to confirm that the drugs are having their intended effects. (4) To harvest the eggs, the woman undergoes an outpatient procedure during which the eggs are aspirated from the ovary by either placing a needle, guided by ultrasound, through the vaginal wall, (5) by laproscopic surgery, or by Trans-Abdominal Oocyte Retrieval. (6) Typically, only local anesthesia is required for this process, (7) but general anesthesia in the form of conscious sedation may be used. (8) Following retrieval, the eggs are fertilized in laboratory dishes using sperm donated by the man and then divide two to four times to become preimplantation embryos (preembryos). (9) The most viable preembryos may then be implanted in the woman's uterus or cryopreserved (frozen). (10) Women who undergo IVF treatments face risks, reportedly minimal, at each stage of the process. Such risks include ovarian overstimulation, which can lead to dehydration, blood clotting disorders and kidney damage, and injuries to structures near the ovaries including the bladder, bowel, uterus, or blood vessels. (11)

   The IVF process is reportedly physically uncomfortable, emotionally draining, and financially burdensome. (12) Thus, to avoid unnecessary repetition of the egg retrieval process, ovarian stimulation often intentionally results in the production of eggs well in excess of those which can be safely implanted. (13) Cryopreservation may be used to preserve the remaining preembryos for future use. (14) An estimated 188,000 frozen preembryos exist in the United States Today. (15)

   The question of who should decide what should be done regarding the use or disposition of frozen preembryos has been the subject of a broad public policy debate that has resulted in legislation in a few states. (16) Disputes over frozen preembryos reach the courts when the two "parents" of the frozen preembryos divorce and battle for control of the remaining frozen preembryos. Struggling with the fact that the preembryos at issue consist of equal genetic material from each of the parents and were, at least temporarily, located outside of the body of both parents, courts have decided that, in the absence of, and sometimes in spite of, the existence of prior agreements, the right not to be a parent should generally control in preembryo dispute cases.

   2. Courts and the "Right Not to Be a Parent"

   1. How This Standard Has Been Applied in Disputes Over Frozen Preembryos

      The right not to be a parent has been articulated and relied upon in most of the preembryo dispute cases litigated so far in the United States. For instance, in Davis v. Davis, the Supreme Court of Tennessee held that in the absence of any explicit prior agreement, a divorced couple's interests should be weighed against one another, and the man's "interest in avoiding parenthood" should prevail over the woman's desire to donate the preembryos to an infertile couple. (17) The court added, "The case would be closer if [the woman] were seeking to use the preembryos herself, but only if she could not achieve parenthood by any other reasonable means." (18) Accordingly, a woman's right to use the preembryos would outweigh the man's interests only if she demonstrates extreme need to use them as originally planned. (19) Further, this statement leaves open to speculation whether adoption or costly medical procedures would be considered "reasonable means" by which a woman could achieve parenthood. Notably, the court di d not indicate that when the preembryos were the woman's only reasonable chance at parenthood, the woman's right to be a parent would conclusively outweigh the man's right to avoid parenthood; it said only that the case would be "closer."

      In Kass v. Kass the Court of Appeals of New York did not explicitly reach the issue of the right not to be a parent because it opted to enforce contractual agreements between the two parties signed both at the time of the IVF procedures and upon divorce stating that the preembryos should be used for research. (20) Nevertheless, the result was that the case was decided in favor of Mr. Kass, who wished to have the preembryos donated for research purposes (thus ensuring that he would not be a parent), rather than Ms. Kass who wanted to have the embryos implanted in herself and who claimed that the preembryos were her only chance at genetic parenthood. (21)

      In A.Z. v. B.Z., the Supreme Judicial Court of Massachusetts noted the preference of both the Davis and Kass courts for relying on prior agreements to resolve disputes over frozen embryos. (22) Nevertheless, the court held, "we would not enforce an agreement that would compel one donor to become a parent against his or her will." (23) The court justified its decision on the assertion that "forced procreation (24) is not an area amenable to judicial enforcement," and therefore, even an unambiguous agreement should be void on public policy grounds. (25) Thus, the right not to be a parent always trumps the freedom of the parties to contract. (26)

      In the case of Litowitz v. Litowitz, the Supreme Court of Washington reversed a lower court decision that recognized the right not to procreate as described in Davis, and interpreted it to allow the male gamete-provider to donate the preembryos for adoption. (27) The court instead relied on a contract signed by the parties prior to the IVF procedure, determining that the disposition of the preembryos should comply with a signed contract that requested disposal of the preembryos if they remained frozen for five. (21) years. In this case, the intended legal mother of the preembryos (the wife of the male gamete-provider) had a hysterectomy, which rendered her unable to donate eggs or to gestate the embryos. (29) Both parties therefore contracted with a woman to act as a donor and surrogate, while Mr. Litowitz's sperm were used to fertilize the donor's eggs, and agreed that the disposition of the unused preembryos would be determined by agreement of both parties or by a court. (30) When Mr. and Ms. Litowitz divo rced, Ms. Litowitz sought to be given the preembryos for implantation in a surrogate and gestated as her legal child. (31) Mr. Litowitz wanted to donate the preembryos. (32)

      In J.B. v. M.B., (33) the New Jersey Supreme Court agreed with the Davis court in its assessment that the party wishing to avoid procreation should generally prevail. (34) The court decided that the right of J.B., the female gamete-provider, not to be a parent prevailed...