Difficult Questions on Unused Embryos

There is a really fascinating article in the New York Times today about the perhaps one million embryos currently in storage in medical facilities across the United States. Most of these embryos have been created through IVF treatments, on which increasing numbers of Americans rely. IVF allows many couples to bring new life into the world and to experience the great gift of children. Given the current state of the technology, though, parents who use IVF must typically create several extra embryos in order to increase the odds of conception. This means that many unused embryos remain. The Times reports that perhaps a million such embryos now exist. What will become of them?

Of course, for many Americans, this question raises important religious issues. The Catholic Church teaches that IVF is immoral in principle, even for married couples, because it violates human dignity and degrades the marital act—though of course children created through IVF are to honored and cherished, just like any others. Evangelical Christians, however, in principle accept the practice for married couples, as do Orthodox Christians. The fate of any unused embryos raises very difficult questions, however. To destroy them seems tantamount to abortion, which both Evangelical and Orthodox Christianity condemn. And all Christians, I think, would have moral concerns about the commodification of embryos that seems the logical outcome of our market society. The Times reports that one California company is already in the business of creating embryos from third parties for would-be parents to purchase, for $12,500, plus a money-back guarantee.

But back to married couples. What should a couple with religious scruples do about extra embryos created by IVF? Some Evangelicals have come up with a good solution. They donate the embryos to other infertile couples. It’s analogous to adoption: 

For example, the National Embryo Donation Center in Tennessee, which is endorsed by the Christian Medical Association, places embryos only with heterosexual couples married at least three years—and only after a home study exploring their readiness to be parents, as is required for families adopting a living child. 

“We think the embryos deserve the same level of protections as children who are being adopted,” said Stephanie Wood-Moyers, marketing director of the center, where the Watts embryos were stored.

Where does the civil law stand in all this? Unlike many countries, the U.S. does not really regulate assisted reproduction technologies, including IVF. And so, as with respect to so many aspects of American life, it becomes a matter of contract law. In my first-year contracts class, in fact, our casebook has two relatively recent cases, one from Massachusetts and one from New York, on the enforceability of parties’ agreements with respect to the disposal of unwanted embryos after IVF. In the Massachusetts case, the court declined to enforce the agreement, in large part because the agreement was ambiguous.

The New York court, by contrast, ruled in favor of enforcement. “Explicit agreements avoid costly litigation in business transactions,” Chief Judge Kaye wrote. She continued:

They are all the more necessary and desirable in personal matters of reproductive choice, where the intangible costs of any litigation are simply incalculable. Advance directives . . . both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instances a quintessentially personal, private decision. Written agreements also provide the certainty needed for effective operation of IVF programs.

Now, you might wonder whether questions as complicated and wrenching for people as these should be handled by contract law, as though they were equivalent to particularly difficult business transactions. (“How do we divide up the inventory if the partnership dissolves?”) Surely there is a more humane way to address these issues. But that seems to be the way our culture is heading. If there’s one thing we still believe in, apparently, it’s liberty of contract—at least when it comes to bearing children.

Mark Movsesian is the Frederick A. Whitney Professor of Contract Law and the Director of the Center for Law and Religion at St. John’s University School of Law. His previous blog posts can be found here.