When a Couple Divorces, Who Owns the Embryo?

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It's a perplexing question, but one befitting our increasingly scientific approach to parenthood: Who controls the fate of frozen embryos? According to a New Jersey state appeals court opinion handed down Thursday, the biological mother maintains a constitutional right to decide what happens to embryos extracted during an in vitro procedure. The case, which draws on some of the most emotionally charged aspects of life and conception, revolves around a couple who conceived one child via in vitro fertilization and stored the remaining seven embryos at a facility that promised to destroy the embryos if there was a divorce. The couple did divorce, and the biological father sued for possession of the embryos. As a strict Catholic who believes life begins at the moment of conception, he equated the destruction of embryos with the end of a life, and decided to take the embryos back, apparently wanting to have them implanted in his new wife. His ex-wife fought his case, arguing her right not to have her biological children born without her consent. And the New Jersey appeals court agreed with her.

"Technology and science are leaping way ahead of the law," says TIME legal reporter Alain Sanders. "The law is struggling mightily to catch up and to deal with these scientific developments, all of which are putting strain on the principle on which our legal system is based, which is the notion of personal autonomy and personal responsibility. These new technological developments challenge the idea of personal autonomy and create a situation in which a person may no longer control their ultimate destiny."

In fact, it is the notion of personal autonomy to which the New Jersey court turned in deciding this case. The ruling calls on language from Roe v. Wade, the landmark Supreme Court case cementing a woman's sovereignty over her reproductive capabilities. And while the cases are miles apart in technical terms, they follow similar philosophical paths, and raise equally fundamental questions the problematic idea of "owning" an embryo.

In the end, however, such cases may center around parental rather than reproductive rights. After all, should a man faced with a similar situation — after a divorce, his ex-wife decides to use the embryos he helped create to have a child — be thus compelled to become a biological father? Other courts considering similar cases have ruled consistently that no one, male or female, should be forced into such parenthood without their express consent. Both ex-wives and ex-husbands have been barred from turning embryos from their former marriage into the seeds of a new family without the consent of their ex. And it would be a very big person indeed who could stomach the idea of donating genetic material to a union they may want nothing to do with.