It is a common complaint that American law can sometimes have difficulty keeping up with American science. In particular, the world of reproductive medicine has made a number of important advances in recent years. Those advances have occasionally come into conflict with our current understanding of family law.
A Maryland couple, for example, is currently fighting a long and bitter battle over the future of their frozen, fertilized embryos. Human embryos are commonly frozen, either fertilized or unfertilized, as part of the artificial insemination process.
In this case, the couple decided to divorce while they still had nine fertilized embryos frozen at a local artificial insemination clinic. The couple, who already had one child born through artificial insemination, was split on opinions about the embryo’s future. The man did not want any more children and he asked for the embryos to be destroyed. The woman, however, wished to conceive another baby.
According to an agreement with the artificial insemination clinic, the woman had legal rights over the embryos. The husband took her to court, however, stating that he had a right to decide whether to become a father or not. What followed was a mix of legalese covering child custody, child support and property division.
One key question was the future of any children the woman would conceive. The man said that the woman was an unfit parent, an assertion apparently supported by a previous court decision. Furthermore, he had concerns about child support. Would the biological father be forced to pay child support when the woman was artificially inseminated and became pregnant against his wishes?
All of this is wrapped up in the much thornier question of whether to treat fertilized embryos as property (as they traditionally have been) or people (as some believe they should be). Many of our existing laws were not written with such questions in mind.
As a result, it falls upon judges and family law attorneys to help determine how the law should be interpreted in cases such as these. It can be a difficult, contentious process, but such litigation helps to pave the way for smoother decisions further down the road.
The Washington Times, “Are unborn children people or property in a divorce, and who decides?” Myra Fleischer, Sep. 19, 2013