Who owns the fertilized eggs? It’s a conundrum. By DWIGHT MERRIAM | SPECIAL TO HARTFORD COURANT |
MAY 06, 2019 | 6:00 AM
Connecticut Supreme Court Justice Steven D. Ecker and Justice Raheem L. Mullins listen to Scott T. Garosshen, attorney for Jessica Bilbao, in a hearing
to determine if rights could be granted to cryogenically stored embryos Bilbao created with her husband, Timothy Goodwin before the couple divorced in 2016. (Mark Mirko / Hartford Courant) Over the last 40 years, more than 8 million babies have been born through the miracle of in vitro fertilization, creating new love and new families. But when couples split, what happens to the embryos? It’s not an easy question to answer. Connecticut would benefit from a law that provides guidance. In the meantime, the Connecticut Supreme Court has that question before it. Is the embryo ordinary property, “special marital property,” or is it a human with independent rights of self-determination? Is an embryo no different than a used car the couple owned? If so, either they or a court must decide who gets it. Or is that frozen embryo a living being? If so, he or she needs a lawyer to represent their best interests and decide where they will go. The possible legal outcomes include: a contract controls the embryo’s fate, the egg producer or sperm contributor decides, the embryo is a human being with an independent right to decide, or a court decides where the embryo goes as a matter of dividing up the marital assets. Courts have gone down different paths. A Canadian court decided a case where the couple bought fertile eggs and sperm. Embryo No. 1 yielded them a son. Then the couple got divorced and the husband wanted embryo No. 2
Their contract with the clinic stated: “In the event of divorce, separation, or marriage dissolution we understand the legal ownership of any stored embryo(s) must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction.” The court found the contract was controlling as a matter of property law, same as a used car. Each embryo was worth $2,875, so the ex-husband received half that — $1,438 — and the ex-wife got a future baby. In Missouri, an appellate judge found that the embryo was neither a living being nor ordinary property. It was “special marital property,” and as such, the judge was empowered to issue a unique order: “The trial court’s judgment finding the frozen pre-embryos are marital property of a special character, awarding the frozen [pre]-embryos to [the parties] jointly," and ordering that “no transfer, release, or use of the frozen [pre-]embryos shall occur without the signed authorization of both [parties] is affirmed.” The couple, who could no longer stand living together, had to agree before anything could be done. That is a non-decision. Finally, we have the embryo as life. If you think your teenagers are difficult, how would you like to be sued by your frozen embryo? “Modern Family” actress Sofia Vergara was sued by her two dozen embryos after she split with her partner, Nick Loeb. Loeb sued to get custody of the embryos. In Louisiana, a fertilized egg is a “judicial person” and has a right to have a trustee to represent him or her, and Loeb named himself trustee.
And here in the Land of Steady Habits, the case argued last week, ”Bilbao v. Goodwin,” raises both the contract theory and that of the embryo having independent rights to be protected. The husband and wife entered into a contract providing for destruction of any unused embryos if the couple divorced. They had a daughter from one and then divorced and could not agree on the disposition of the remaining embryo. The former wife, who does not want strangers to have the embryo, argues the contract should be enforced and the embryo destroyed. The former husband, after having his daughter, changed his mind, and backed by pro-life advocates, seeks to have the Connecticut Supreme Court hold that the embryo has rights in itself that must be protected. What is to be done to bring order to this chaos? A state law that would provide judicial guidance would help. But Arizona was the first to do that, and it was a bad start. The pro-life law mandates that in any dispute over destroying the embryos, they must go to the party who wants them “to develop to birth.” That is unfair to a man who doesn’t want to father another child and unfair to a woman whose fertilized embryo might be implanted in another against her will. All couples creating fertilized embryos need legal counseling and a contract between themselves and with the clinic, making clear all the contingencies — and that is something state lawmakers can and should mandate. Ultimately, this is a property rights issue, and those rights can be predetermined and made binding by contract.
Dwight Merriam, www.dwightmerriam.com, is a lawyer in Simsbury and the Connecticut member of Owners’ Counsel of America, a network of eminent domain lawyers committed to protecting private property rights.