Transcript The Parent Trap:Uncovering Judical Bias in Frozen Embryo

The Parent Trap:Uncovering
Judicial Bias in Frozen Embryo
Disputes
Ellen Waldman
Thomas Jefferson School of Law
The Plot
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Couple Marries
Couple Pursues Fertility Treatment
Couple Divorces
Couple Disagrees Regarding Fate of Frozen
Embryos
Permutations on Basic Plotline
• Gender of parties
desiring “custody”
• Whether fertility
treatment successful
• existence of a contract
specifying disposition
• Nature of legal
analysisconstitutional,contract
ual, public policy
• family law precedent
in state
End Result in Each Case
• Party Seeking Embryo Destruction Wins
• Party Seeking Custody of Embryos to (in
most cases) Obtain Genetic Parenthood
Loses
• Why?
Davis v. Davis (Tenn. 1992)
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Six IVF attempts
Five ectopic pregnancies
adoption attempted
at divorce, Junior
(husband) wants
embryos destroyed;
Mary Sue wants to
attempt implant
• Embryos due “special
respect”
• Dispositional agreements
should be enforced
• “Ordinarily, party
• wishing to avoid
procreation should
prevail…if
reas.possibility of
achieving parenthood
exists”
Kass v. Kass (New York,1995)
• Egg retrieval 5
times;egg transfer 9
times;attempted
surrogacy with sister
• 4 consent formstouched on disposition
ambiguously
• Court engaged in
contract analysis
• Ignored clause that
dealt with divorce;
found that clause
dealing with “death..
or other unforeseen
circumstances”
applied
A.Z. v. B. Z. (Mass. 2000)
• Six in vitro
procedures, two
ectopic pregnancies
• one procedure resulted
in twin daughters
• consent form says in
event of divorce, wife
gets excess frozen
embryos
• Court states the
process by which
forms signed
problematic
• Regardless of
procedure, contract
whereby one
“becomes a parent
unwillingly” is against
public policy
A.Z v. B.Z. reasoning
• “As a matter of public policy, we conclude
that forced procreation is not an area
amenable to judicial enforcement “
• no legal claim for breach of promise to
marry
• surrogacy contract must have period during
which birth mother can change mind
• contract requiring conception or abortion
unenforceable
J.B. v. M.B.(N.J. 2001)
• One in vitro procedureone daughter; seven
excess embryos
• Wife wants embryos
destroyed;husband wants
to donate to infrertile.
• Consent form says-in
event of divorce, IVF
center keeps embryos
• Court weighs right to
procreate versus right not to
procreate
• Davis presumption applies
• M.B. can still procreate
• J.B.’s right to avoid
procreation trumps
J.B. Reasoning
• “J.B.’s right not to procreate may be lost
through attempted use or through donation of
the preembryos. Implantation, if successful,
would result in the birth of her biological
child and could have life-long emotional and
psychological repercussions….genetic ties
may form a powerful bond …even if the
progenitor is freed from the legal obligations
of parenthood”
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Assumptions Embedded in
Judicial Reasoning
• Biological Parenthood generates
Psychological Parenthood
• Objecting Biological Parent will either feel
compelled to play a parental role, or will
suffer from feeling a strong tie to biological
offspring without being a significant part of
that offspring’s life
• Reasonable opportunities for other parent
to achieve parenthood exist
Does Biological Parenthood
Beget Psychological Parenthood
• Phenomena of
Disappearing Dads
• nonresident biological
dads begin investedinvestment declines
over time
• Fragile Families data40% nonresidential
dads uninvolved at
birth
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Factors
residential proximity
mother’s education
new partner
mother-father
relationship
Findings from sociologists studying
parental involvement
• Furstenburg-”A man’s allegiance to his
children is maintained in part by the bond
established with his children’s mother. When
that bond dissolves, men sometimes have
difficulty establishing a direct relationship
with their children.”
• Seltzer- “noncustodial parents discard ties to
their biological children with divorce, and the
ties are replaced through remarriage”
Solutions?
• Abolish presumption in favor of right to
avoid procreation
• Approach cases contextually- each case
individual factors to be considered
• Judges should recognize own “transference”
• Dispositional Contracts should be enforced?