Jack and Jill were in a committed relationship for several years. Jill had a grown son, and was getting older, toward the end of her reproductive years. Jack wanted to have a baby, but he understood that Jill was very busy in her career, and being pregnant was not a possibility given her type of work.

So they both decided to seek help at a fertility clinic. They had several embryos created, the first two of which were not successfully implanted in a surrogate. Luckily there were two remaining embryos for future use.

It seemed like a perfect scenario. Although they weren’t married, they had agreed that the remaining embryos would be kept frozen until such time that Jack and Jill wanted to have children, and could try again.

When a couple sets aside frozen embryos, what are their individual rights if they can’t agree?

Nita Lind/Flickr.com

Unfortunately, Jack and Jill hit a rocky patch in their relationship and broke up. Jill moved on and got engaged to Joe, planning a future with him instead. Jack was still pining over the embryos and thought it might be possible to have a surrogate get pregnant and carry the embryos to term, creating children, like he had always dreamed.

But there was a slight glitch. The contract stipulated that both he and Jill would have to consent to use the embryos, and there were no provisions in the agreement for what to do if they broke up.

The embryos contained genetic material from both Jack and Jill, joint property. But Jill wanted them to stay frozen, while Jack wanted to attempt to use them to create children.

Who owns the embryos? Should they be kept frozen until Jack and Jill can reach an agreement? Does Jack have any rights to use them with a surrogate on his own? Does Jill have the right to have them destroyed? Do the embryos have any rights at all?

Believe it or not, with all of the reproductive technology that has been around for decades, the courts have not yet decided who owns embryos if there is a dispute. Despite an estimated hundreds of thousands of frozen embryos in the United States alone, there have only been a handful of cases that have highlighted this dilemma, the most recent one being publicly fought by businessman Nick Loeb and actress Sophia Vergara, otherwise known above as Jack and Jill.

Reproductive Rights and Abortion

For women, the Roe vs. Wade decision from 1973 was a monumental turning point in the law about reproductive health, and the Supreme Court upheld the right of a woman to choose whether to terminate a pregnancy or take it to term. The wishes of the man in this scenario, to put it bluntly, didn’t matter. Because the fetus was in a woman’s body, she had the ability to choose without consent from the genetic male parent. Challenges to the law in Planned Parenthood versus Casey requiring spousal consent were struck down, and no notification was needed for a woman to legally end a pregnancy, let alone permission.

In Tennessee in 1992, a wife was unable to donate her embryos to another couple because her ex-husband objected. A court ordered them destroyed, because his right to not be a parent was greater than her right to donate the embryos.

Women have the right to choose what to do with their body. If they choose to have a child, then they can expect to receive financial support from the father of their child, as courts have ruled it in the child’s best interest, even if the father was not a consenting party to the birth of the child.

If Jill got pregnant, she could have an abortion without Jack’s permission, and he can’t stop her. If she chose to have the baby, even if Jack didn’t want to, he would still have to pay child support.

Fast-forward more than 40 years, and women don’t have to carry their own babies. With the advances in reproductive technology, embryos can be created outside the body and then frozen indefinitely until the time comes when the genetic creators decide to thaw out the cells and try to have them implanted. The woman doesn’t have to have the child herself, a surrogate can be hired to do so.

In that case, Jack’s rights and Jill’s rights should be equal. But are they?

In Tennessee in 1992, a wife was unable to donate her embryos to another couple because her ex-husband objected. A court ordered them destroyed, because his right to not be a parent was greater than her right to donate the embryos. (Davis v.  Davis 1992). However the court contended that it would have been different if the woman planned to use the embryos herself and not donate them to another party.

In  April 2012, a court in Pennsylvania awarded a woman frozen embryos despite her ex-husband’s wishes, because she had cancer treatments and was otherwise unable to have children. Her rights to be a parent were considered greater than his rights not to procreate.

In another twist, a child, once born, can sue for child support from their parent, and in several cases throughout the U.S., courts have granted this request regardless of the consent of the genetic father to have the embryos used to create offspring.

So back to Jack and Jill. Or Nick and Sophia. With the original intent of creating the embryos being to have children, does Jack have the right to the embryos and a surrogate, or does Jill have the right to keep them frozen or even destroyed because she does not wish to be a genetic parent to the potential children?

If either Jack or Jill had no other options for parenthood, the court might decide that either one could use the embryos without the other’s consent. Additionally, that does not dissolve the right for child support from the other partner. Even if a contract is signed stating that there is no responsibility for financial support, the child could sue based on the right to be provided for until adulthood.

Despite thinking carefully about their wishes, neither Nick or Sophia stipulated what would happen to the embryos if they were no longer together, or if one of them was deceased. Even in situations between married couples who are divorcing, the law is still unclear. Are embryos “property” to be divided with the rest of the estate?  With all of the issues regarding ownership, the only way to decide is through the courts.

This case may just dictate future laws about the handling of embryos throughout the U.S. Hawaii hasn’t had a case like this yet, but with the increasing scientific discovery  regarding infertility and reproduction technology, what happens with this case in California might just set the precedent nationwide.