Tue | Aug 14, 2018

Does the right to procreate outweigh the right not to procreate?

Published:Monday | September 21, 2015 | 12:00 AM

More often than not, when focusing on the effects of separation and divorce, this column is addressing issues surrounding prenuptial agreements, marital property and spousal maintenance. Today, we consider a fairly novel issue involving frozen embryos.

It is not unusual, today, to hear that couples are attempting to conceive children through artificial insemination or in-vitro fertilisation (IVF). Yes, it even happens in Jamaica where, as I have pointed out in previous articles, there is no legislation to support the practice. As it turns out, even in countries where there are some laws governing in-vitro fertilisation, the issues are still so new that there is uncertainty as to what should happen to a frozen embryo.

Here is the background. A couple who are prepared to delay having children for a while, decide to use his sperm and her egg to create an embryo and freeze until they decide whether to implant the embryo into that woman's womb or that of a surrogate to have a child. The problem is that, despite the contents of the agreement they might have signed prior to creating the embryo, either party may have a change of heart as to what should happen to that embryo once they separate.

This is exactly what happened in the case involving well-known actress Sofia Vergara, and her former fiance, Nick Loeb. Although Vergara separated from Loeb in 2014 and is now engaged to marry someone else, the two had conceived and frozen two female embryos while they were engaged, and Loeb wants to prevent Vergara from destroying them.

While I have not seen any current reports about the issue, an interesting article on macelree.com: "The Legal Uncertainty Surrounding the Disposition of Frozen Embryos in American Divorce Proceedings" identified some aspects of the legal debate:

• Do embryos have all the legal rights of humans?

• Are frozen embryos property?

• Are frozen embryos something more than mere property, but have a status less than human life?

The case of David vs Davis that was heard in the Tennessee courts was cited in the article to show that the three positions have been accepted by the courts. In the Circuit Court, the ruling was that the court had to act in the best interests of the unborn child and granted the wife custody of the embryo so that she could implant them and ensure their continued survival.


decision reversed


The Appeals Court then reversed that decision and found that the embryos were joint marital property and that the wife's right to implant them would be contrary to public policy. For that reason, the implantation could only proceed if both parties consented to it. When the matter was considered by the Supreme Court, it was determined that the embryos had neither full human rights, nor were they marital property. Instead, the embryos have "human potentiality". The Supreme Court ruled in the husband's favour and the writer noted that, where the parties disagree as to what should happen to the embryos, the court's ultimate decision will need to weigh the right to procreate against the right not to procreate.

In the case of Reber vs Reiss No. 1351 EDA 2011, the couple underwent IVF treatment after the wife was diagnosed with breast cancer and was advised that IVF treatment would be her best chance to preserve her ability to conceive a child. After receiving cancer treatment, the wife said that she was led to believe that she would not be able to conceive a child.

The couple separated and eventually got divorced. The husband then established a new relationship and had a biological child with his new wife. Meanwhile, the wife sought an order for all of the embryos for implantation, and the parties agreed that the embryos were marital property subject to equitable distribution.

The wife succeeded in the trial court. In the Pennsylvania Court of Appeal, it was considered necessary to examine the agreement the parties had reached at the time of fertilisation of the embryo and to balance the competing interests of the parties. The court eventually ruled in the wife's favour.

The issues are complex and it is hard to predict what the outcome of any case will be. It would appear that each case will be decided on its own facts.

• Sherry-Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.