Consensus is not a word used when talking about assisted reproductive technology, or ART, for short. In the past, we’ve reported on the controversial issues of designer babies and embryo adoption, but, recently, the Los Angeles Times detailed the particularly complex case of Dr. Mimi C. Lee and Stephen E. Findley, a divorced couple who are now battling over the future of their frozen embryo. It’s a case that has the potential to set a legal precedent in California for disputes of this type.
“If Lee prevails, Findley could be forced to become a parent against his will. If Findley wins, it is extremely unlikely that Lee, now 46, will ever have a genetically related child,” Times reporter Maura Dolan writes. Lee was diagnosed with cancer years ago, preventing her from being able to have a baby without the embryo.
While their particular case is newsworthy, ART is far from unique. According to the Centers for Disease Control and Prevention, in 2012, 65,000 babies were born via assisted reproductive technology—that’s 1.5 percent of all American infants.
But questions concerning the morality and legality of ART have persisted since the practice came into use in the early 1980s. As Rachel Rabkin Peachman wrote in our March/April 2015 issue:
The interplay of technology and human reproduction has always been controversial. When artificial insemination was first the subject of medical literature over a century ago, the procedure was widely viewed as scandalous. Only after decades did opinions begin to soften. In 1964, Georgia became the first state to legally treat children who were conceived with donor sperm as the offspring of their mother and non-biological father, as long as both the husband and wife consented. Then, in the decades that followed, came sperm banks, “test tube babies,” IVF surrogacy, and anonymous egg donation.
In her piece, Peachman detailed the unusual story of adopted sisters Jodie and Shannon, who have created very non-traditional families using ART: When Jodie and her husband Paul were unsuccessful in conceiving, she turned to her sister Shannon—”an egg-making machine,” as Jodie put it—and used her egg for in vitro fertilization. Several years later, Shannon and her husband, Eric, wanted to start a family of their own, but soon realized that Shannon was unable to support a pregnancy. Jodie, with a “womb to rent,” stepped in and became a surrogate for Shannon and Eric’s twins. In short: Shannon is the biological parent of her sister’s child, and Jodie is the aunt of the children she birthed.
Morally, ART remains a divisive topic among Americans. A 2013 poll by the Pew Research Center found that 12 percent of adults in the United States think in vitro fertilization is wrong, 33 percent find it to be acceptable, and 46 percent are indifferent.
Complicating the issue is the fact that, unlike frozen sperm or eggs, there’s a tendency to view frozen embryos, which are used in many forms of ART, as something more than just a reproductive asset. “There are patients who believe with all their fibers that these are their frozen children,” Susan L. Crockin, a Massachusetts-based lawyer, told the Times.
This case is a representative example of a bigger issue with assisted reproductive technology in this country: It’s largely unregulated and ambiguous.
Despite the estimated one million frozen embryos in the U.S., there’s nothing close to a consensus on how courts should handle those babies-to-be. For instance, in 1992, Tennessee’s highest court deemed an embryo neither a person nor property, but instead something in between. More recently, a probate court in Texas treated an embryo like property, awarding a deceased couple’s embryos to their two-year-old son, who, in 16 years, will have to decide whether he wants to destroy it or create a sibling.
In the past, courts have exclusively prohibited one partner from using an embryo when the other partner objects. Recent cases in Pennsylvania, Maryland, and Illinois, however, have ruled in favor of women like Lee, who had cancer and would have been unable to conceive without the embryo. In Lee’s case, she and Findley signed a contract agreeing to destroy the embryo in the event of a divorce—although, according to the Times, Lee “has testified that she signed the consent agreement during a turbulent time in her life and had merely scanned it.”
This is a representative example of a bigger issue with assisted reproductive technology in this country: It’s largely unregulated and ambiguous. As Marcy Darnovsky, executive director of the non-profit Center for Genetics and Society, told the Washington Post earlier this year: “The United States is the Wild West of the fertility industry.”
According to Post reporter Michael Ollove, while the federal government does require that “laboratories engaged in assisted reproduction to be certified by organizations such as the American College of Pathologists and to report certain data to the CDC, other aspects of ART are simply unaddressed,” including state regulations on the number of children who can be conceived per donor, the medical information that must be supplied by donors, and the required age of a donor.
Part of the reason lawmakers are cautious to approach this territory, Darnovsky said, is because matters of conception and embryos are inextricably linked to the issue of abortion. In other countries, such as Germany, Sweden, Australia, Canada, and the United Kingdom, many facets of ART are heavily regulated.
States are evenly split about requiring contracts between couples or prospective parents and donors before creating frozen embryos. But, as Lee and Findley have demonstrated, even when there is a contract, it is far from black and white. There is hardly a right answer when it comes to issues of this sort, and that’s what makes this precedent-setting case in California so important.
Since We Last Spoke examines the latest policy and research updates to past Pacific Standard news coverage.
