Embryos On Ice, Now On Trial

In a divorce, it’s common for shared items to be distributed between the two parties. Someone gets the house, another the car and sometimes someone even gets the yacht. But who gets the embryos? This question has been emerging more frequently as in vitro fertilization, or IVF, treatments become a more widely available option. 

The New York Times recently reported on the case of Erin Millinder, highlighting how instead of Millender and her ex-husband Adam Rubin fighting about materialistic things, they’re fighting over the fate of their frozen embryos.

This debate is now causing a frenzy in the courts as they try to decide whether the potential lives should be treated like an object or the beginning of parenthood. 

Millender is a 47-year-old woman from Alabama whose frozen embryos became the focus of a bitter legal dispute following her divorce. 

She wanted to use the embryos to have a child, but her ex-husband objected and revoked his consent, arguing that doing so would force him into unwanted parenthood. However, the alternative of him being rendered to the status of an anonymous donor would belittle his role during IVF treatments, he claimed.

At the end of Millinder’s case, she was granted court approval to have control over the embryos, civil court Judge Teresa Ciccotto stating Millinder’s interests in the embryos override any interest Rubin might have. 

Following the ruling, Millinder implanted the embryo, only to find out that Rubin later requested an appeal, which is still pending. Millinder is still pregnant, and the court is unsure of its next move. The next steps will likely result in redress for Rubin, and motherhood for Millinder. 

The biggest problem facing legal battles about frozen embryos is the court’s inability to justify unilateral authority to decide what happens to them. Embryos aren’t property in any meaningful sense, and yet they aren’t legally recognized as children.

“It’s one of those areas courts struggle to even grasp the science that’s involved, but also to apply things that they are used to doing, like reading contracts or property law,” said Jordan Paradise, Faculty Director of the Beazley Institute for Health Law and Policy and Beazley Chair in Health Law at Loyola. “That’s what they are used to doing, not potential human beings and reproductive technology.”  

IVF is an unregulated space, meaning cases pertaining to it are handled on a case-by-case basis. 

Asking a judge unequipped to make reproductive decisions for citizens to resolve these conflicts forces the legal system into a complex situation it cannot navigate without overstepping. 

Some argue Millinder should’ve signed a contract to avoid these issues entirely, but Paradise said most people aren’t thinking about what may come next. 

“When you’re together, you’re not thinking about time when you’re not together,” Paradise said. 

If there’s no contract made between the two individuals on what exactly should happen to frozen embryos in cases of separation, it falls onto the clinics and IVF specialists themselves to use their contracts.  

Clinics are still businesses and work as such, so it’s not mandatory for them to outsource to professional organizations to issue best-practice guidance. They anticipate these things happening, but mainly focus on isolating themselves from a potential lawsuit. 

Even in cases when couples do have contracts, most are broad and don’t outline certain specifications. These include situations like divorce and parental rights, which don’t hold up in court, meaning deliberations must be made accordingly. 

Another problem for courts is that cases on frozen embryos and parental rights are generally rare, meaning there’s no real precedent to follow.

Yet, it’s not entirely the court’s fault. Paradise said these systems typically don’t receive government intervention, so they usually handle disputes internally. 

“There is no federal agency that oversees it and states tend to not touch this stuff,” Paradise said. 

This lapse isn’t found everywhere. Federal bodies with this kind of oversight already exist. Paradise noted other countries like the United Kingdom have federal organizations that oversee genetic and embryology issues. 

The Human Fertilisation and Embryology Authority is an independent statutory body in the United Kingdom that oversees fertility treatment, embryo research and genetic screenings. The United States hasn’t dedicated the resources to create a similar organization, which would help ease deliberations made by the states. 

In the absence of federal regulation involving the pregnancy space, the subsection of fertility services has a gap that states have to take on themselves and attempt to fill. 

It seems like many states have asked for a federal agency to emerge, since rulings can vary drastically simply because of location. State-by-state laws and regulations can result in completely different rulings on similar cases, making it even more difficult to find a common ruling for these cases. 

IVF treatments are becoming more available and common for Americans. Some find it can be the difference between having a family or not, and that decision shouldn’t fall onto courts. 

For millions of people, IVF is the only way to have a biological child. For those families and individuals, IVF symbolizes hope along with new beginnings — something that can’t be measured by a contract or a court.