This morning, the New York Times published an op-ed by Nick Loeb, a man who wants to use two embryos he created with his ex-fiancee, despite her objections. "Our Frozen Embryos Have a Right to Live," reads the headline. His ex-fiancee also happens to be the phenomenally famous Sofia Vergara.
Loeb goes into detail about the history of his and Vergara's personal choices: how she wanted to use a surrogate if they had children, how one embryo they implanted didn't take, how their surrogate had a miscarriage. He admits that he and Vergara "signed a form stating that any embryos created through the process could be brought to term only with both parties’ consent," which he is now requesting be voided because it did not specify what would happen if the couple split. Loeb also delves into his own personal history: His parents divorced when he was 1, his biological mother was largely absent and his mother figure recently passed away, all of which he says has increased his desire to be a father. He also includes religious commentary, arguing that his quest for "custody" over the embryos has "everything to do with a parent’s right to protect the life of his or her unborn child."
I have sympathy for Loeb's clear desire to have children -- just as I hope that any man or woman who deeply wants to experience parenthood gets the chance to do so. But the subtext of Loeb's op-ed, and that the New York Times gave him a platform to publicly pressure Vergara and expose her reproductive choices, are deeply troubling.
This is a legal case about the validity of a contract, not a Moral Debate about when "personhood" starts. Reading Loeb's op-ed, you'd have no idea.. (And anti-abortion advocates, who are generally quite split on the issue of IVF, have been quick to jump in and support him.) Loeb brings up an ex-girlfriend of his who had an abortion while he was in his 20s, tying this event to his current desire for fatherhood. "Ever since, I have dreamed about a boy at the age he would be now," Loeb writes.
He also argues that keeping embryos indefinitely frozen "is tantamount to killing them." Except that frozen embryos are not children -- they have the potential to become children. Embryos do not need to be fed, nurtured, put through school, taught to tie their shoes and sent off into the world to prosper independently once they become adults. Embryos need to be kept in a freezer at a certain temperature -- and that can be done indefinitely.
Loeb also erroneously equates a woman's right to bring a pregnancy to term with his desire to "to bring embryos to term even if the woman objects." For better or worse, the financial and emotional burden of carrying a child is greater on the person whose body is doing the carrying. Once a woman is pregnant, that responsibility -- and therefore, the choice to take it on or not -- is ultimately on her.
If Loeb's case against Vergara goes to court, it would bring up a number of complicated questions that could have far-reaching consequences for other men and women pursuing IVF with frozen embryos. As Robin Marty wrote in an April 20 piece for Care2.com:
A judge would have to address why demanding spousal, partner or “father” consent in order to discard embryos is a legitimate requirement for an embryo being destroyed, but not for a pregnancy being terminated. Stating that an embryo, because it is not dependent on a particular person in order to live, has the right to be passed on to someone who will bring it to term and let it be born could even potentially open up new paths for people to claim “adoption” rights over embryos in storage should those paying fees to keep them frozen decide to destroy them rather than use them.
And the legal precedents surrounding embryo freezing are murky at best. HuffPost's Kim Bellware reported in January that despite reproductive technology having increased exponentially in the last two decades, "fewer than a dozen states have weighed in on legal disputes that arise from the creation, destruction or use of frozen embryos." And the cases that do arise are heart-wrenching and incredibly complex.
As Jezebel's Madeleine Davies wrote earlier this month, when it comes to embryo custody: "It’s a big fucking mess. Should a woman who’s no longer able to have children have her embryos taken away because her former partner no longer wants them? And what if the genders are reversed? There’s no easy answer."
But there are certain elements of the case between Loeb and Vergara that are actually quite simple. Both of them explicitly signed a contract stating that they would not move forward with creating children out of these frozen embryos without mutual consent. One party has not consented, and the other -- who could still have children independent of Vergara -- is upset about it. (On the other hand, Sofia Vergara's desire not to be forced into biological motherhood with her ex can't be undone if Loeb uses these embryos.)
This is not about "saving lives" or "being pro-parent," no matter how many New York Times op-eds Loeb writes. He'll most likely just have to find another partner -- or egg donor -- to make his dreams of fatherhood happen.