Modern Families: the Emergence of Embryo Custodial Rights
Last month, Nick Loeb penned an an impassioned Op-Ed Column in the New York Times detailing his custody battle with former fiancee Sofia Vergara, an actress on the ABC sitcom Modern Family. While news on celebrity split-ups is typically found on TMZ rather than the NYT, Mr. Loeb’s case is a little different. Mr. Loeb is pursuing his right to custody of fertilized and frozen embryos. In his column Mr. Loeb writes,
“When we create embryos for the purpose of life, should we not define them as life, rather than as property? Does one person’s desire to avoid biological parenthood (free of any legal obligations) outweigh another’s religious beliefs in the sanctity of life and desire to be a parent? A woman is entitled to bring a pregnancy to term even if the man objects. Shouldn’t a man who is willing to take on all parental responsibilities be similarly entitled to bring his embryos to term even if the woman objects? These are issues that, unlike abortion, have nothing to do with the rights over one’s own body, and everything to do with a parent’s right to protect the life of his or her unborn child.”
The question of which party has the right to a couple’s fertilized and frozen embryos was addressed by the Pennsylvania Superior Court in the 2012 case Reber v. Reiss. In that case, the Court was charged with deciding whether the embryos should go to Wife for implantation or to Husband for donation/destruction. Using a “balancing approach” wherein the interests and intent of each party was considered and given weight, the Court ruled in Wife’s favor. Because Wife sought ownership of the embryos so as to carry them to term and give birth, and because Husband sought to donate them or have them destroyed, the Court ruled that Wife ought to have the right to the embryos so long as Husband was not held responsible for their upbringing, financially or otherwise. The Court reasoned:
“[O]ur courts must consider the individual circumstances of each case. In this case, because Husband and Wife never made an agreement prior to undergoing IVF, and these pre-embryos are likely Wife’s only opportunity to achieve biological parenthood and her best chance to achieve parenthood at all, we agree with the trial court that the balancing of the interests tips in Wife’s favor.”
As we continue to see advances in medical technology, novel issues of law will continue to arise. Until legislation can catch up, the Courts are charged with deciding what’s “fair”. In the case of custodial rights to frozen embryos, the Pennsylvania Courts held that the question is to be interpreted on a case by case basis and using a balancing approach whereby all relevant facts are considered and given the appropriate amount of weight.
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