Discussion Summary

Ellen Waldman Discussion Summary BSS June 16, 2004

Key points of discussion

1. Right to procreate vs. right not to be forced to procreate

. Is there really a right to procreate?

. Case law (in a series of recent state decisions) supports destruction of embryos when there is a dispute about their fate following divorce. This presumption favors the right to avoid procreation over the right to procreate.

. Rulings based on potential psychological and emotional encumbrance risks that would accrue to the unwilling ‘parent.’

. In making this presumption, particular contextual issues of the case don’t get considered, for example, the potential harm to each party from each particular outcome (destruction vs. use by one party vs. donation to others).

. The reasoning is usually that the party wishing to use the embryos (for procreation) has other options for conception, even when these options may be thought unreasonable given the age of the woman, etc.

2. Contracts regarding the disposition of unused embryos in case of divorce, death and so on hold little if any judicial weight.

. That such contracts are not upheld potentially affects the way IVF clinics ought to approach contracts with patients. Oughtn’t clinics inform couples that current judicial precedent does not recognize prior agreements?

. The state of law regarding enforcement of contracts regarding the disposition of fertilized embryos is inconsistent from state to state.

. Sometimes ICFs serve as contracts in these disputes.

. How might the donation of an egg from a third party affect the outcome in these cases?

3. The connection between the destruction of embryos in stem cell research and the frozen embryo disputes.

. Conflict: The courts have no problem allowing destruction of left over IVF embryos while not allowing destruction of embryos for stem cell research.