THE BLOG
04/05/2016 11:21 am ET | Updated Apr 05, 2016

It's Unwise to Define Frozen Embryos as Human Life

The Missouri legislature is currently considering the enactment of legislation that would define frozen embryos as human life. According to Rep. John McCaherty, R-High Ridge, the bill's sponsor, the legislature must take action because "in essence, what the judicial system is doing... they have no clear direction what to do with frozen human embryos so they are treating them as property."

Rep. McCaherty is correct that the current case law in Missouri on this issue defines frozen embryos as property. As a result, when a divorcing or post-divorcing couple is at odds as to whether to gestate or destroy their frozen embryos, the courts have ruled in favor of the party who did not want the embryos gestated. Most courts in other states have ruled the same way, with the exception Pennsylvania, Illinois and Maryland.

As the New York Times reported on January 19, 2016, "anti-abortion groups are seeking a foothold on a new battlefield: custody disputes over frozen embryos."

This is by no means an insignificant issue. In fact, according to the U.S. Department of Health & Human Services, "there are more than 600,000 cryo-preserved embryos in the United States."

Most people are unaware of the number of couples in the United States which have received or are receiving infertility services because those utilizing such services typically don't share that information with others.

A report titled "Infertility Service Use in the United States: Data From the National Survey of Family Growth, 1982-2010" was published by the U.S. Department of Health and Human Services on January 22, 2014 stated in pertinent part as follows:

Twelve percent of women aged 15-44 in 2006-2010 (7.3 million women), or their husbands or partners, had ever used infertility services. Among women aged 25-44, 17% (6.9 million) had ever used any infertility service. Thirty-eight percent of nulliparous women with current fertility problems in 2006-2010 had ever used infertility services. In all survey years, ever-use of medical help to get pregnant was highest among older and nulliparous women, non-Hispanic white women, women with current fertility problems, and women with higher levels of education and household income.

The fact that people receiving infertility fail to share that information with others was one of the issues raised during a wonderful plenary at the American Bar Association's Spring 2015 CLE Conference titled "From Cradle to Grave --The ART of Your Family Law Practice." The panel members for that program consisted of Lisa Morgan, Robert Terenzio, Meryl Rosenberg, Steven Snyder, and Noel Tucker. In any event, they stated that people receiving such services don't tend to share that information with friends, family members, employers, and others for various reasons, including shame (perception of being "defective"), fear of being terminated from employment, and fear that their children will be treated differently.

Over the years, it's come out that many anti-gay advocates were themselves gay or were found to have engaged in gay sex. Don't be at all surprised if the same isn't true of the most rabid anti-abortion advocates. It's amazing what the fear of being shamed and judged causes people to do.

Welcome to the United States of America, where we excel at shaming and judging others and therefore cause people to live inauthentic, hypocritical lives!

Irrespective, legislation and case law defining frozen embryos as human life are inappropriate for so many reasons.

First, try freezing a live human being and bringing them back to life. Once you can do that, I might consider entertaining the argument that an embryo is a human life. However, even then, it's a real stretch to call an embryo a human life, in my opinion.

Second, under such a definition, the embryos can't be destroyed in the event a couple divorces or their non-marital relationship ends. Therefore, the couple can then fight over who gets to keep the "human life" and possibly try to have it turn into an actually living and breathing human being.

Third, the former spouse and other parent to the embryo can then pay child support for that child that was nothing more than a frozen embryo when the parents were still romantically connected. The former couple almost certainly had not agreed that the frozen embryo should be gestated in the event of the breakup of their romantic relationship.

Fourth, not only can the former couple fight over who gets the "human life" after their breakup, but they can also fight over custody and visitation of a child that was no more than a frozen embryo when they broke up and do so until the child is no longer a minor, and they can fight during that entire time over child support obligations for a child that was no more than a frozen embryo when they broke up.

Fifth, such a definition would impose a higher obligation on fertility clinics to ensure that the frozen embryos are "kept alive." How long would such an obligation exist, if frozen embryos are human life? After all, as my colleague, Mark Ressa, Esq. said, "would the fertility clinics have to keep the frozen embryos alive forever as they will never technically die in their frozen state"? As you might imagine, such issues will be another source of litigation to keep lawyers busy and their wallets full.

Sixth, as family law attorney Ressa also said, "perhaps the insurance industry will benefit too as people will want/need to get policies to pay for the frozen embryos 'maintenance' after the 'parents' have long ago passed. Boggles the mind."

This legislation, if passed and signed into law by the governor will generate a tremendous amount of business for lawyers and help to ensure a great deal of parental conflict for the children born under such circumstances to endure. Since parental conflict harms kids, such legislation will help parents to raise even more emotionally damaged children.

As David Brooks said in his article titled The Post-Trump Era, "Conservatism needs a worldview that is accurate about human nature."

Sadly, this lack of understanding of human nature leads to a great deal of chaos in all aspects of life.

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