Who Owns an Embryo?
Understanding embryo grading. Utah Fertility Center.
In this mini-sode, Tyler and Devan discuss a recent court case where a judge partially relied on a 19th century law that treated humans as property in order to rule on whether an embryo should be considered property.
Read about the court’s use of this law here. This story was originally reported in the New York Times.
Transcript
0:31
All right, Tyler.I came across a news story that a friend sent me this past week that I think is going to be really interesting for you.All right?Bring it on.Okay, so before I get to the news story itself, I want to just ask you kind of a background question.Have you thought, you know as as somebody who studied the law about what an embryo is, what an embryo is I I have in my mind, a working definition of what an embryo is, but since you phrase it like that, I'm going to say maybe I haven't thought about it enough.
1:09
Okay, well maybe so medically like what is an embryo?Right.So it is a group of cluster of cells that have been fertilized and are kind of in kind of a limbo State before progressing into growing into a human.
1:31
Hmm.Sure.That sounds good enough to me, okay, right of the scientific kind of answer and of course so we have something like a million embryos in storage right now because of the process of IVF.So in vitro fertilization, you create that embryo outside of the womb and they the hope is that they get implanted.
1:53
But often people will create more of these embryos and they actually even want implanted because maybe not all of them fertilized correctly and so you do a few more and then you can store the extras.So millions of embryos being stored in the u.s. right now and of course there's lots of ethical questions about this, right?
2:11
So what jumps into your mind is sort of the The ethics of embryo storage.So there are questions about whether we should be doing this at all.Sure yep.So there are certain religious Traditions that have questions about the creation of potential life outside of marriage and that type of thing.
2:36
So there's a fundamental question of should we be doing this at all?But then there are I see a couple of Of other further.Questions number one, being if these are not humans and I don't think that we under the law, treat them as humans, the embryos individual embryos, they are potential humans.
2:56
So what types of Rights or duties?Do we have towards them, you know, in order to kind of magnify their dignity and stuff like that?I think that would be a question.Also who is controlling these who's in charge?
3:13
Hmm, is it, the is it that people who, who, Who provided the gametes that created the embryo?Is it the facility that actually houses?The, the embryos is, it may be the physician or the technician that created them, do they have some sort of say in it?
3:32
So I think there's all, I mean, that's just off the top of my head, but I think there's a lot.Oh yeah, lots of issues, right?So even if you think that their persons all Of issues with like them being created at all.Like, what does it mean to store a person in a freezer?
3:50
What would it mean to destroy them?So let's say you didn't want the embryos.You either didn't want to proceed with IVF, or you did have a child and you don't want any more children, is it okay to destroy them.I actually ran across a clinical Ephesus recently who was talking about how in Texas.
4:06
There's all these embryos that are stored that we can't trace back to the people that created them like the We've sort of for whatever reason, lost the thread and but the hospital's don't even know what to do with them.Wait, so the people whose genetic material was used to create the embryo, we've lost their cell phone number or something.
4:29
Yeah.Yeah.Like they were maybe created a while ago and we've just lost the connection.But so, then, is it, are you allowed to destroy them?If you don't get the consent of the the persons whose genetic material there?So also, The questions there.And of course even maybe even more important is like what would it mean to the hospital?
4:49
Like would it be bad PR if we destroyed a bunch of embryos in a place like Texas, where maybe a lot of people do think that their persons or can we do research on them?So those are kind of the oh he's the present questions about embryos and IVF, there's another kind of legal question that comes up though, and it came up in this case.
5:06
And I talked about it with my students sometimes is like, who owns them and you've sort of suggested this, but I doubt many people would say, oh, the physician who created the embryo, they own them, that would be weird, right?Probably the people who donated their genetic material to create the embryo own as a weird word, but have kind of Rights over this embryo.
5:29
But what if those and it's, you know, those two people.What if those people disagree about, then what should be done with the embryo?Yeah, I think I remember reading a case about this in law school.Facts are a little bit different.
5:44
But yeah, what if the parents for lack of a better term?The the donors of the material.If they say, they were married, when these were created, then they get divorced.Yep.Wow, yeah.And I mean so that's usually the case that we think about is they were in the process of IVF, maybe they tried implantation before.
6:06
Maybe they even had children, but there are still these extra embryos, they get divorced and either one of the parties wants to Use the embryo, like wants to implant it either in, you know, the woman herself or if a man were to get remarried and it's the embryo is half of his genetic material.
6:23
Could he use that embryo in a new partner?Would that be ethical Wow, it feels like kind of sci-fi Brave New World.Yeah, but I mean what?
6:38
So what would be your gut impulse?So let's say the easier cases, maybe, you know, that it was a married couple and they get divorced, but the wife the woman, the ex-wife still wants to implant that embryo.Do you think she has the right to do that?And so, just for clarification, the, let's say, the husband or the ex-husband is in disagreement with that.
7:03
Can she make that decision against his in contradiction to his decisions?That is that kind of what you're asking, right?Right.So if they agreed, then, maybe there's no ethical question there.But let's say they disagree.So say he says, Nope, I have as much right over.
7:19
This embryo as she does, I don't want another child.And I don't want her to implant this embryo.Does he does his right to not have children supersede her right to have children.Boy that is a super interesting question because there are very few.
7:39
So let's just assume let's look at this as if those embryos are property and which again like is kind of an uncomfortable way of looking at it.But so if Another piece of property.Might be a couch right.It's so say super similar.
7:55
Yep.Go on.Yeah.So let's say let's say this married couple bought a couch from Ikea used equal amounts of their own money to purchase this couch, but it hasn't been assembled yet.And for some reason, it's a unique couch and they split up the the marriage relationship dissolves and one person wants to create the couch.
8:19
The other says, no, I don't want that couch to ever see the light of day.Uh-huh.I have no idea what the law would do.Yeah.I know, I would be really surprised if the law has specifically looked at this.I mean, state by state jurisdictions, obviously, but yeah, I don't know.
8:38
Yeah, I mean, it's so I would say, sort of my impulse in these cases is that in the sounds really strange but they're the right to not have children.Me super seats, the right to have children, you know, and I'd have to think more about this, but I think if you don't want that embryo to be implanted, that's a pretty strong, right?
9:05
Right.So we talked about procreative Liberty and you know that our government should not prevent people from having children.Again, we talked about this in a previous episode, our government did that for a long time, with Eugenics, sort of forcibly sterilizing people, we think that that's wrong.So I Don't think the government should be able to step in and prevent people from having children.
9:24
But at the same time, I think the right to not have children is also really strong and that if you are it is weird to talk about an embryo as property, but if it's half of your material and that potential child is your child.
9:42
You have a pretty strong right?Not to bring that child into the world, if you don't want to be a parent.All right?So we also want to Serve those rights.So it's this complicated like whose rights supersede, but I think to not bring the child into the world, seems to me like a stronger, right?
9:59
But I think the law is pretty unclear about this.And so, I there's been cases in different states where this has come up.So here we finally 10 minutes into this, I'm going to get to the case itself because this is the question.So, in Virginia last week, this was the case.
10:16
So I husband and wife get divorced.They had been going through IVF She, the wife wants to implant the embryo.They had had actually, apparently this is pretty common.These days is that you sign an agreement about what would happen if this if divorce were to happen and they had said that either, a Court ruling would determine who has the rights over the embryo or they'd have to agree.
10:40
So the idea is, and this would, of course, be the what you would want, you'd want both parties to agree.So, you do some sort of mediation.Just like you would in any divorce proceeding.To decide how to delineate property.That'd be the best case scenario, right?Or you enforce the prior agreement, of course, this prior agreement was that a court order?
11:00
Could overrule one of the parties.So this is where we're at.They can't agree.You got it, do this and so it's going before a judge and the ex-husband is saying, no way.I don't want this embryo to be implanted.I have I have rights to, she can't do it and she's saying, you know, this is my last chance.
11:19
She has a very sad story.Rory of going through chemotherapy and being infertile and this is her only shot at having biological children.And so who is he to prevent her from doing that?Simply because he doesn't want to have a child with her, right?So what is, what do you think?
11:36
What do you think the judge says, in this case, what would be great?Let's say you're the judge, you're the Virginia judge.You know, what are you, what kind of precedent are you going to draw on or what kind of old old timey, laws are going to kind of maybe apply to this case.Oh boy.I hope that there are no old timey laws that get brought into this because it's, it's a, it's a Fool's errand.
11:58
I think to try to apply historical laws to these really new technologically, interesting questions.I think that there is some precedent in regards to like gestational surrogacy.So when somebody would a woman, somebody a person with a fetus or not, if he has a person with a uterus, this is impregnated implanted with through the IVF process, with somebody else's embryo that.
12:30
So the carrier, the the person who is using their uterus, is the way to say it, but cool.Yeah, I got halfway.Yeah, he's right.I got halfway to that sentence and it just kept getting more awkward.So anyway, so the person who is Carrying the child.
12:51
And, you know, obviously it's growing in them.There have been situations.They've been case law where that individual tries to assert some sort of parental rights over the, the fetus or the newborn.And then it gets.I think there's a couple of California cases that talk about that.
13:09
So that's as close as I think that the laws.Been to my knowledge but I'm sure yeah, I'm sure others.No more and our listeners are going to correct me.Like they they seem to enjoy to do that.I do.They do please, correct.Tyler at all points of what you just said, you know, the woman with the uterus.
13:28
So, so, that's right.So there have been these interesting cases and honestly like state law on this is so wild.I show this chart to my students all the time where it's like, what with surrogacy, what those state laws are and they are really variable.So in some states The woman who gives birth to the child is the legal mother until she forfeits those rights.
13:48
So even if she were just the gestational carrier meeting like she's not genetically related, she could in some places get parental rights that would be if it gets strange and it doesn't typically happen but that it's there's some wild coincidences in the law and they're pretty different.But this is a slightly different than that in that.
14:07
You know who gets to own.This embryo is a somewhat different question and what kind of precedent You draw on unfortunately.The judge in this case did drawn an old-timey law, the worst kind of old-timey law.
14:23
Oh no slaves, as property laws, wait wait, no, he did.So he referred to an 18-49 code that categorize slaves as property, that could be divided and sold as precedent for thinking about embryos as 30 to be sold.
14:48
That seems like a not a great, even if the idea behind it would make sense like citing slavery laws in any regard right now.Seems like a really bad move seems like a bad but like even if it's expeditious to get the outcome that you think is fair, don't just don't slack site, Slave Code.
15:09
Like just seems like a big really.There's nothing else in the law that you could think about.I mean, even if you think of Rio's is property one of the best.So as I was reading this article when people on the far left and the far right, both agree, that the thing you just did is really bad.
15:26
That's a fun coincidence, right?So, it was, you know, they're, they're quoting people from like the Southern Baptist convention, who think that embryos are persons, who are like, no, don't cite Slave Code and then you have people who are all for kind of reproductive Liberty.And choice also saying like, nope don't cite slave codes, so he's so A bad way to maybe get to the outcome.
15:48
And so and this decision that he wrote up, merely means that now the ex-wife can go to trial to try to get rights over the embryo.But yeah.So I said I got this article sent to me.I was like, oh my gosh, what are like what would a bioethicist?
16:05
Think my hope.And I think I'm fairly confident in this is that no bioethicist thought that this was a good idea.Yeah.At least the way he got to this decision.I think that there might be a, I mean, most judges a lot of Judges have either the law students or recent law grads as clerks.
16:26
And so maybe this one just got slipped through the editing revising process.But right, so I think regardless of whether you think of embryos as persons or potential persons, yeah, I just don't want to invoke legalized slavery as A way to talk about who gets to own the embryo.
16:49
Yeah, I agree.And that is that is my legal opinion.Write that one down.Don't slight site Slave Code.Yep.Yep.It's a good.That's a good like bioethical.Principle like don't call their people Nazis and less like they're actually not cease.
17:06
This is a good one in bioethics and don't cite Slave Code period.Actually there's no there's no second part of that.Yeah.There's no second part of that, that sentence.That is necessary.Yeah, so it'll be interesting to see kind of what the backlash is against this.
17:25
Or if this gets taken up by other judges, just can't imagine what he was thinking because it seems to me.And you're the lawyer, you know, you know better than I do.There must be a better analogy.The IKEA sofa seems not like a equally bad analogy, a very poor one, but still better than Slave Code but you know, the surrogacy Eli's makes sense is kind of some sort of precedent or even like organs.
17:52
I mean it's weird because an embryo isn't an organ either but we do still have regulations about like who owns organs and whether they can be bought and sold, maybe that's a better analogy.There does seem to be like no great analogy here, but possibly picked the worst one to set a precedent for, right?
18:10
And I think that we just need to rely upon the, the stall principle.Hmm.Which Has don't slight don't site Slave Code period.