Frozen Embryos, Who has legal rights?


Invitro is defined as, “In glass, as in a test tube”(Taber’s cyclopedic dictionary,1993), hence with reference to invitro fertilization, the term “Test tube baby”. The first ‘test tube baby’ was Louise Brown of England (Jonsen, A. R., 1996). Dr. Patrick Steptoe and Professor Robert Edwards combined an ovum from Mrs. Brown, and sperm from Mr. Brown cultured it in a petri dish, and reimplanted the now embryo into Mrs. Brown’s uterus (Jonsen, A. R.,1996). The result was the same as a child born in the usual way, only the means to the end was different. The media had a field day with this, and since then, reproduction as we know it has changed.

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We now use the term “assisted reproduction” to describe a host of methods used to assist infertile couples to have children. A menagerie of large terms, abbreviations, and acronyms are used under the umbrella of this term, such as GIFT, IVF, FSH, AID, etc. The bottom line is that technology has allowed man to take yet another matter into his own hands, that may be considered “playing God”.

As with any new procedure or product, there are always “bugs to work out”. Sometimes we can anticipate what these will be, but many times we “cross that bridge when we come to it”. Such seems to be the case with assisted reproduction. Considering the complicated custody battles already occurring with regard to our “naturally made children”, we have seen, and can anticipate more tangled legal webs ahead.

Not much has been done to anticipate the complexities involved with assisted reproduction. In 1975, a federal law was enacted that created an Ethics Advisory Board

(EAB)(Caplan, A. L., 1990). In 1979, this organization issued a report merely stating that invitro fertilization was worthy of monetary funds (Caplan, A. L., 1990). The EAB disbanded in 1979 (Caplan, A. L., 1990). In 1994, The American Society for Reproductive Medicine designed a set of ethical considerations, but compliance is voluntary (Klotzko, A. J., 1998). Since no real regulatory agency exists, IVF is done as providers see fit.

The formation of The American Society for Reproductive medicine reflects the fact that there are clearly many ethical issues with regard to IVF. Three issues are the following:

1.Previously, an embryo has been a part of a woman’s body. Roe vs. Wade based it’s decision on abortion being part of a woman’s privacy. With regard to frozen embryos which are not a part of the women’s body, does she have the right to choose their fate, and does the father have equal say?

2.Do the potential parents of these embryos have the right to change their minds about becoming parents once the embryos have been frozen?

3.In complicated matters with multiple parents, does multiple parental roles with visitation rights adversely affect a child’s social development?

When one is discussing abortion, the argument heard most often by the

advocates of pro-choice is that this is a matter of a woman controlling what goes

on with her body. Furthermore, advocates claim, that as such, the elimination

of the fetus falls under this right of privacy.

Pro-life advocates feel that these embryos are individual human beings entitled to the right to be born. Embryos are considered life in the earliest of stages.

However, what we have here are frozen embryos, suspended if you will in a state of non-life. They clearly do not reside in the woman’s body as of yet, and if kept in the current state, will never give breath. It seems that the prochoicers would have to extend their definition of these being a part of the woman’s body, to giving their potential to be such, meaning as well. While they are not a part of the woman’s body yet, this is the intended place for them to grow, and obviously they cannot grow inside of the father, at least yet.

The prolife, and paternal argument would be that these embryos are clearly not a part of the woman’s body. They could be implanted in any woman, not necessarily the mother. Therefore, the mother does not have the right to abort the embryos. Furthermore, the male may have the right to claim custody for implantation in another suitable candidate other than the mother if she is unwilling.

What we have in the case of Mary Davis and Junior Davis is a woman fighting to have her own embryos implanted in her own uterus. Based on some of the facts above however, does the father now have more right over the embryos, since this process has not yet taken place? Obviously the situation here is very complex. Unfortunately these types of situations could be prevented through forethought. Couples undergoing these types of procedures clearly need to anticipate all scenarios. Practitioners could easily fit

issues into the counseling phase, and even request to have documentation of such before these procedures are done. A contract could cover many different possibilities.

Anticipatory decision-making certainly would alleviate the daunting task of deciding these issues after the fact.

However, the court system often has the responsibility of deciding these very personal matters. What is clear here is that we have seven potential people. We also have a willing, assumingly capable mother. What we do not have is a willing father. If a person who had been raised solely by his/her mother were asked if he/she would like to never have been born, I doubt too many would say yes. It is for this reason, that I feel the embryos certainly are entitled at their chance at life.

I further qualify this argument to state, that if the situation were reversed, with the father desiring to implant the embryos into another female (possibly his new partner), I would advise that the embryos should be given to the father. Furthermore, this father could not take back the children if the previous attempts had been successful. Therefore, why should he be entitled to do so now?

The statement that these “children in vitro” whose best interest required “that they be available for implantation” is key. These are truly “children in vitro”. They are not part of the mother’s body. Therefore, their options at life do not hinge on one certain person and the privacy issues relating to her body.

Now I wish to address some details here. The father does not wish to be a parent here. Does this clear him of responsibility to these children? Clearly, the father’s morality should preclude that he would want to be involved in the life of his children. Obviously, this is not always the case. Therefore, is he obliged to have visitation, or pay support? My argument for this is no. The father has shown his desire not to become a parent. As such, he relinquishes his tie to these children. He should not be required to pay support, nor have visitation. The best interest of these children does not lie in having a “shotgun” father.

What I would say to these parents would depend on my role. As a health care professional, it would be difficult to step in and advise at all. I would rather try to facilitate examination of their own beliefs. Hopefully, I would have had the pleasure to meet with this couple before this scenario, in order to assist with some preemptive decision making. If this couple however, was truly desiring an honest an open opinion, and asking for my true feelings in advising them, what would I say? My speech, would go something like this:

“What we have here will influence moral decisions of many in the future. It must be considered that what you do here, will be a looked upon by other couples facing these very difficult issues in the future. Coming to an agreement based on sound moral reasoning will show an example for the future. If couples begin to work these issues out without legal litigation, these very personal matters remain personal. These are issues of family. How you wish to handle your family is considered a right by many. If these

situations can be agreed upon, lawmakers will be able to avoid interference in family matters. The creation of laws and regulations will inevitably fall short of the vast amount of variability needed to fairly pervade over every situation. With that said, I would implore you to work out your differences.

“If you are still unable to do this, allow me to be candid. It is my opinion that these are seven potential children. They were created by the both of you at a time in your life when this was something you both wanted. They were created through thought and planning. Many things in life are done by accident, but these embryos are not one of them. If you still do not wish to be a parent, Mr. Davis, then perhaps you would acquiesce if some stipulations were made. Mrs. Davis has asked to be a responsible party for the embryos. Perhaps we could create a release of responsibility for Mr. Davis, relieving him of all duty in matters of visitation and support. I do not necessarily condone this release from fatherhood, but it may provide an avenue to come to an agreement. Unfortunately, the idea of whether or not these embryos are considered children weighs heavily on the matter. This issue boils down to your feelings on abortion. Heavily weigh your options and remember the world will be watching.”

The option exists in the current situation to give life to the embryos with neither actual parent needing to really be involved in the matter i.e. donation to the infertile couple. Reality here however, lies in the possibility that the child may hold the parent responsible in one way, shape or form in the future. Yet another possibility, a statistically sound one at that, is that the embryos may not even come to term

successfully. There are many unknowns here, and all factors cannot be anticipated. Society can now control many factors, but fate still pervades some aspects.

Along with the technological advances in society, we have created options that never would have been conceived before. Issues of reproduction and abortion are issues that once were controlled by fate. Having a hand in such matters of such

monstrous proportion requires us as people to hold ourselves to a standard that possibly cannot be done by humans. For this reason, reproduction may have been better served by the one who used to control it, before man took over.


Caplan, A. L. (1990). The ethics of in vitro fertilization. In R. T. Hull Ethical
issues in the new reproductive technologies (pp. 96-108). Belmont, CA:

Jonsen, A. R. (1996). “O brave new world”: Rationality in reproduction. In
D.C. Thomasma & T. Kushner (Eds.) Birth to death: Science and bioethics.
(pp.50-57). Cambridge, England: Cambridge University Press.

Klotzko, A. J. (1998). Medical miracle or medical mischief? The saga of the
McCaughey septuplets. Hastings Center Report.28(3), 5-8.

Shapiro, R. (1998). Who owns your frozen embryo? Promises and pitfalls of emerging reproductive options. Human Rights25(2).

Taber’s cyclopedic medical dictionary(1993.). Philadelphia, Davis Company,
F. A.

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Frozen Embryos, Who has legal rights?. (2018, Sep 18). Retrieved from