Embryo Donation Contract - PowerPoint

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					 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
  Permutations on Basic Plotline
• Gender of parties         • Nature of legal
  desiring “custody”          analysis-
• Whether fertility           constitutional,contract
  treatment successful        ual, public policy
• existence of a contract   • family law precedent
  specifying disposition      in state
      End Result in Each Case
• Party Seeking Embryo Destruction Wins
• Party Seeking Custody of Embryos to (in
  most cases) Obtain Genetic Parenthood
  Loses
• Why?
     Davis v. Davis (Tenn. 1992)
•   Six IVF attempts           • Embryos due “special
•   Five ectopic pregnancies     respect”
•   adoption attempted         • Dispositional agreements
•   at divorce, Junior           should be enforced
    (husband) wants            • “Ordinarily, party
    embryos destroyed;         • wishing to avoid
    Mary Sue wants to            procreation should
    attempt implant              prevail…if
                                 reas.possibility of
                                 achieving parenthood
                                 exists”
 Kass v. Kass (New York,1995)
• Egg retrieval 5          • Court engaged in
  times;egg transfer 9       contract analysis
  times;attempted          • Ignored clause that
  surrogacy with sister      dealt with divorce;
• 4 consent forms-           found that clause
  touched on disposition     dealing with “death..
  ambiguously                or other unforeseen
                             circumstances”
                             applied
     A.Z. v. B. Z. (Mass. 2000)
• Six in vitro             • Court states the
  procedures, two            process by which
  ectopic pregnancies        forms signed
• one procedure resulted     problematic
  in twin daughters        • Regardless of
• consent form says in       procedure, contract
  event of divorce, wife     whereby one
  gets excess frozen         “becomes a parent
  embryos                    unwillingly” is against
                             public policy
        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
          J.B. v. M.B.(N.J. 2001)
• One in vitro procedure-    • Court weighs right to
  one daughter; seven          procreate versus right not to
  excess embryos               procreate
• Wife wants embryos         • Davis presumption applies
  destroyed;husband wants    • M.B. can still procreate
  to donate to infrertile.   • J.B.’s right to avoid
• Consent form says-in         procreation trumps
  event of divorce, IVF
  center keeps embryos
             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”
•
     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
  Does Biological Parenthood
 Beget Psychological Parenthood
• Phenomena of             •   Factors
  Disappearing Dads        •   residential proximity
• nonresident biological   •   mother’s education
  dads begin invested-     •   new partner
  investment declines
  over time                •   mother-father
                               relationship
• Fragile Families data-
  40% nonresidential
  dads uninvolved at
  birth
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”
               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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