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The Parent Trap:Uncovering Judicial Bias in Frozen Embryo Disputes

The Parent Trap:Uncovering Judicial Bias in Frozen Embryo Disputes. Ellen Waldman Thomas Jefferson School of Law. The Plot. Couple Marries Couple Pursues Fertility Treatment Couple Divorces Couple Disagrees Regarding Fate of Frozen Embryos. Gender of parties desiring “custody”

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The Parent Trap:Uncovering Judicial Bias in Frozen Embryo Disputes

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  1. The Parent Trap:Uncovering Judicial Bias in Frozen Embryo Disputes Ellen Waldman Thomas Jefferson School of Law

  2. The Plot • Couple Marries • Couple Pursues Fertility Treatment • Couple Divorces • Couple Disagrees Regarding Fate of Frozen Embryos

  3. Gender of parties desiring “custody” Whether fertility treatment successful existence of a contract specifying disposition Nature of legal analysis- constitutional,contractual, public policy family law precedent in state Permutations on Basic Plotline

  4. End Result in Each Case • Party Seeking Embryo Destruction Wins • Party Seeking Custody of Embryos to (in most cases) Obtain Genetic Parenthood Loses • Why?

  5. Six IVF attempts Five ectopic pregnancies adoption attempted at divorce, Junior (husband) wants embryos destroyed; Mary Sue wants to attempt implant Embryos due “special respect” Dispositional agreements should be enforced “Ordinarily, party wishing to avoid procreation should prevail…if reas.possibility of achieving parenthood exists” Davis v. Davis (Tenn. 1992)

  6. Egg retrieval 5 times;egg transfer 9 times;attempted surrogacy with sister 4 consent forms-touched on disposition ambiguously Court engaged in contract analysis Ignored clause that dealt with divorce; found that clause dealing with “death.. or other unforeseen circumstances” applied Kass v. Kass (New York,1995)

  7. Six in vitro procedures, two ectopic pregnancies one procedure resulted in twin daughters consent form says in event of divorce, wife gets excess frozen embryos Court states the process by which forms signed problematic Regardless of procedure, contract whereby one “becomes a parent unwillingly” is against public policy A.Z. v. B. Z. (Mass. 2000)

  8. A.Z v. B.Z. reasoning • “As a matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement “ • no legal claim for breach of promise to marry • surrogacy contract must have period during which birth mother can change mind • contract requiring conception or abortion unenforceable

  9. One in vitro procedure-one daughter; seven excess embryos Wife wants embryos destroyed;husband wants to donate to infrertile. Consent form says-in event of divorce, IVF center keeps embryos Court weighs right to procreate versus right not to procreate Davis presumption applies M.B. can still procreate J.B.’s right to avoid procreation trumps J.B. v. M.B.(N.J. 2001)

  10. J.B. Reasoning • “J.B.’s right not to procreate may be lost through attempted use or through donation of the preembryos. Implantation, if successful, would result in the birth of her biological child and could have life-long emotional and psychological repercussions….genetic ties may form a powerful bond …even if the progenitor is freed from the legal obligations of parenthood”

  11. Assumptions Embedded in Judicial Reasoning • Biological Parenthood generates Psychological Parenthood • Objecting Biological Parent will either feel compelled to play a parental role, or will suffer from feeling a strong tie to biological offspring without being a significant part of that offspring’s life • Reasonable opportunities for other parent to achieve parenthood exist

  12. Phenomena of Disappearing Dads nonresident biological dads begin invested-investment declines over time Fragile Families data-40% nonresidential dads uninvolved at birth Factors residential proximity mother’s education new partner mother-father relationship Does Biological Parenthood Beget Psychological Parenthood

  13. Findings from sociologists studying parental involvement • Furstenburg-”A man’s allegiance to his children is maintained in part by the bond established with his children’s mother. When that bond dissolves, men sometimes have difficulty establishing a direct relationship with their children.” • Seltzer- “noncustodial parents discard ties to their biological children with divorce, and the ties are replaced through remarriage”

  14. Solutions? • Abolish presumption in favor of right to avoid procreation • Approach cases contextually- each case individual factors to be considered • Judges should recognize own “transference” • Dispositional Contracts should be enforced?

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