REPRODUCTIVE INDETERMINACY AND RIGHTS DISCOURSE IN FROZEN EMBRYO DISPUTES.

AuthorKnouse, Jessica

Abstract

The lived experience of reproduction is infused with indeterminacy. Judicial rhetoric, in contrast, operates in absolutes. Litigants are perceived in binary terms as fertile or not, trying to procreate or not, pregnant or not, and parents or not--when the reality of their situations is far more complicated. Rights are similarly perceived in binary terms, such that a litigant seeking procreative autonomy may assert either the "right to procreate" or the "right to avoid procreation"--even if neither accurately describes what she wants. Disputes over frozen embryos provide unique insight into this problem because they involve parties who have experienced months, if not years, of reproductive indeterminacy and who, at the point of litigation, make opposing rights claims. When a couple disagrees about the disposition of jointly created frozen embryos and the disagreement is not resolved by contract, most courts apply a balancing test: the interests of the party asserting the "right to procreate" are weighed against the interests of the party asserting the "right to avoid procreation." Ordinarily, the latter prevails, unless the party wishing to procreate lacks a "reasonable" path to parenthood without the embryos. Whether a "reasonable" path exists often turns on whether the party wishing to use the embryos is perceived as fertile, in which case her claim will likely be denied, or sterile, in which case it may succeed.

This framework misses the complexity, contingency, and uncertainty intrinsic in all reproductive endeavors. The decision to procreate or avoid procreation is rarely singular or stable. People undergoing in vitro fertilization are rarely either fertile (able to establish a pregnancy) or sterile (permanently unable to establish a pregnancy). They are, instead, infertile, and their infertility has led them to make many decisions over the course of many months and often years about how, when, and whether to proceed with treatment. And if they achieve pregnancy--not to mention parenthood--they will make many more decisions. To describe these individuals, in the context of a frozen embryo dispute, as choosing "to procreate" or "to avoid procreation" trivializes the complexity of their circumstances. Similarly, to assume that a party experiencing infertility has a "reasonable" path to parenthood without the embryos is to ignore the reality that, even if she has the resources (physical, emotional, and financial) to undergo further treatment, there is no guarantee that it will produce gametes, that the gametes will create embryos, that the embryos will lead to pregnancy, or that the pregnancy will result in childbirth. By erasing inherent indeterminacy, existing judicial rhetoric offers a disappointingly limited vision of reproductive potential and reproductive rights. This article draws on multiple lines of work, from postmodern feminism to reproductive justice, to argue for a new doctrine in which reproductive rights exist not within a binary system but rather along a multi-dimensional spectrum.

INTRODUCTION

By exposing the deep indeterminacy inherent in the lived experience of reproduction, we can create a positive space for rethinking reproductive rights. Courts typically view reproduction through a distinctly modern lens, wherein it is comprised of two rights locked in a binary opposition: the right to procreate and the right to avoid procreation. While these two rights have historically inhabited separate doctrinal spheres, with the former focused on avoiding sterilization and the latter on accessing abortion, they presently intersect in a unique subset of cases involving frozen embryos. When a divorcing or otherwise separating couple disagrees about the disposition of jointly created embryos and no contract resolves their disagreement, courts typically "balance" the interests of the party seeking to use the embryos to procreate against those of the party seeking to prevent their use and avoid procreation. While the outcomes vary across cases, the success of the party wishing to procreate often turns on whether the court views her as "fertile" or "sterile." She will rarely succeed unless she is perceived by the court as "sterile" or, in other words, permanently unable to establish a pregnancy. (1)

This system is built upon multiple false dichotomies. First, rarely is it accurate to describe a party wishing to use embryos as definitively fertile or sterile. (2) More often, that party occupies the interstitial state of infertility, (3) wherein her chances of achieving parenthood by any means are uncertain: there is no guarantee that further treatment will produce either gametes or embryos, that embryos will lead to pregnancy, or that pregnancy will result in childbirth. Nevertheless, courts rest their decisions on the availability of a "reasonable" alternative path to parenthood. Second, rarely is it accurate to describe the parties as invoking singular rights "to procreate" or "to avoid procreation." Their intentions are far more complex: Both parties, by the point of litigation, have made many highly contextual decisions over the course of many weeks, months, and often years of fertility treatment about how, when, and whether to proceed. And if they achieve pregnancy (not to mention parenthood), they will make many more. For example, a woman who has undergone fertility treatment and achieved a much-desired pregnancy might, if faced with a devastating diagnosis, choose abortion. To describe her simply as having chosen "to procreate" would be as inaccurate as to describe her as having chosen "to avoid procreation." Nevertheless, courts allow this reductive rights discourse to drive their decisions.

Judicial rhetoric in frozen embryo disputes erases indeterminacy and, as a result, offers an overly simplistic view of reproductive potential and reproductive rights. Postmodern feminism and reproductive justice advocacy, however, create space for a more expansive discussion that acknowledges complexity, indeterminacy, and lived experience. We can rarely know whether a party in a frozen embryo dispute has a "reasonable" path to parenthood without (or even with) the contested embryos. If a court believes there is a path to parenthood without the embryos and rules against a woman wishing to procreate, there remains a very real chance that she will not become a parent--especially if doing so entails in vitro fertilization (IVF). For women under thirty-five who have the resources necessary to pursue IVF, the live birth rate is 41-43%; for women over thirty-five, it is significantly lower. (4) Even if a court believes there is no path to parenthood without the embryos and rules in favor of a woman wishing to procreate, there remains a very real chance that she will not become a parent. The embryos may not survive thawing, may not be genetically viable, may not implant when transferred, or may not produce a live birth. Acknowledging the complexity and indeterminacy of these lived experiences illuminates alternative possibilities for our rights discourse.

This Article is divided into three major parts: Part I uses postmodern feminist theory and reproductive justice advocacy as lenses through which to explore reproduction. It begins with an introduction to postmodern feminism: Whereas the law (a solidly modern institution) demands certainty and organizes the world into binary oppositions, postmodernism is skeptical of and resistant to such constructions. In its feminist iterations, postmodernism dismantles patriarchal hierarchies (e.g., men/women) through the process of "deconstruction." Marginalized narratives are thereby uncovered and diversity, complexity, and indeterminacy are revealed. Having drawn on postmodern techniques to dismantle existing structures, Part I turns to the reproductive justice movement to construct a new framework: Growing from the work of Black feminists, the movement teaches us to acknowledge the full spectrum of reproductive barriers (not just abortion) and to honor the full spectrum of reproductive experiences. It attends to the intersectionality of gender with race, class, and other traits and seeks out holistic solutions. Finally, Part I argues that these two lines of work can together serve to dismantle oppressive categories and expose the inherent complexity and indeterminacy that are ever-present in the lived experience of reproduction.

Part II begins by exploring frozen embryo disputes. It observes how state courts deciding these disputes heavily rely on a false sense of certainty and an uncritical embrace of binary oppositions. First, these courts speak as if they can assess with certainty whether a party wishing to use contested embryos has a reasonable chance at achieving parenthood without the embryos. This is implicitly an inquiry into whether the party is fertile or sterile. It ignores the reality that assessing even a fertile person's chances at parenthood is quite difficult, and that the typical difficulties are often magnified for the infertile parties involved in frozen embryo disputes. Courts seem to categorize anyone not proven to be sterile as fertile (and able to achieve parenthood without the contested embryos). There is, in these cases, a disjunction between judicial discourse and reality. Second, these courts collapse reproductive rights into a binary where parties may assert either a "right to procreate" or a "right to avoid procreation." This reductive framing fails to capture the parties' complex intentions and thus creates another disjunction between judicial discourse and reality. Part II then turns to the source of the binary rights-framing, which lies in Federal Supreme Court doctrine. From a federal-constitutional perspective, there are essentially two sets of reproductive rights cases: those considering the right to avoid state sterilization, and those considering the right to avoid state interference with access to contraception and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT