The modern pro-life movement isn’t quite sure what to think about frozen embryos. In vitro fertilization helps people get pregnant, and pro-lifers are unlikely to denounce a procedure that has helped create more than 1 million U.S. babies. But almost every person who has undergone IVF ends up with excess embryos that will never get implanted. For those who believe a clump of up to a few dozen cells that’s less than a week old should have the same rights as a living human being, there aren’t many opportunities to weigh in with a full-throated defense of these embryos without disparaging parents who’ve struggled with infertility.
Those rare cases usually concern embryos locked in “custody” disputes, wherein an estranged couple can’t agree on what to do with them. Typically, one person wants to use the embryos to have children and the other wants them destroyed, donated, or frozen forever. The Thomas More Society, a firm that often files lawsuits relating to anti-abortion issues, has represented several people who belong to the former category of plaintiffs. The group argues that embryos should not be treated as pieces of jointly owned property because they have a right to life that supersedes an adult’s right not to reproduce.
As of a few weeks ago, that viewpoint has been enshrined as state law in Arizona. The legislation, the first of its kind in the nation, mandates that disputed embryos should go to the party most likely to make them “develop to birth.” The law is a major win for anti-abortion groups—not coincidentally, it was inspired by one of the Thomas More Society’s cases—who would like to see embryos and fetuses endowed with legal rights and privileges. The more laws that treat embryos as fully fledged human beings, advocates believe, the more grist courts will have to restrict abortion rights and criminalize women who terminate their pregnancies.
The case that inspired the Arizona law centers on Ruby Torres and John Joseph Terrell, who created seven embryos before Torres went through cancer treatment. Later, during the couple’s divorce proceedings, she said she wanted to keep the embryos for possible use since she probably couldn’t get pregnant without them. Terrell said didn’t want his genetic material to be involved in Torres’ hypothetical pregnancy at all. An Arizona Superior Court judge ruled that Torres couldn’t make a baby with the embryos without Terrell’s consent. But, the judge added, the embryos shouldn’t be destroyed—they must be donated, offered up to infertile people who can’t make embryos themselves.
From the pro-life perspective, this is the second-best outcome: The woman who wants to bring the embryos to life doesn’t get to keep them, but they still stand a chance of becoming children. For pro-choice observers, however, it’s a disturbing decision. Why should a stranger have the right to use Torres and Terrell’s embryos when neither of them approved that option? If Terrell’s argument was compelling enough for the judge to deny Torres possession of the embryos, why wasn’t it enough to keep the embryos out of a mass donation bin, forcing him to have biological children he still doesn’t want?
The Torres–Terrell decision prompted a Republican Arizona legislator to write the law that took effect this month. As the Washington Post explains, state Sen. Nancy Barto put forward what she believed to be a compromise solution, one that gives embryos to aspiring parents like Ruby Torres but stipulates that the party that doesn’t get the embryos will not have to provide financial support for any resulting children.
For infertility advocates, the Arizona law is less a Solomonic decree than a portent of a borderline-dystopian future wherein the government can compel people to become parents long after they decide they don’t want to be. In a letter to the Arizona House of Representatives, Barbara Collura, president and CEO of the infertility organization RESOLVE, imagined a few possible nightmares the law could make real: a set of embryos going to an unfit parent the court has no discretion to refuse; an ex-spouse gaining possession of 20 old frozen embryos and having several future girlfriends gestate them all, while his first wife watches helplessly as her genes make someone else’s children. Collura registered particular dismay over the fact that the law would override the original stated wishes of the two people who made the embryos, who typically sign a pre-IVF document for their medical provider laying out agreed-upon plans for the embryos should the couple ever break up.
In recent years, the thorniness of the frozen-embryo issue has come to light via Sofía Vergara, whose ex-fiancé Nick Loeb has filed several lawsuits to gain possession of the two embryos they created together. Recently, Loeb moved to Louisiana, a state in which embryos created through IVF that haven’t yet been implanted are considered “juridical persons”—nonhuman entities (usually businesses) that are nevertheless able to engage in legal activities as individuals. This means clumps of cells can act as plaintiffs in Louisiana lawsuits, a privilege the embryos Loeb has named “Emma” and “Isabella” employed when they sued Vergara, claiming she “abandoned and chronically neglected” them by leaving them frozen for three years without giving them a chance to be born. Louisiana, though, has no law requiring contested embryos to go to the party that wants to gestate them. If the state had a law like Arizona’s, Vergara would have no right to prevent Loeb from having her biological children. Loeb’s supporters in the anti-abortion community have championed the concept of “a father’s right to choose” to rally others to his side. For them, the Arizona law may act as an equalizing force: A man can’t always forbid his pregnant lover from getting an abortion, but once the couple makes frozen embryos together, he may be able to make her become a biological parent against her will.
Torres has already appealed the judge’s decision in her case, and the new Arizona law will surely be challenged in court. As of now, there is little judicial consensus on the issue of embryo possession, making it difficult for the parties in these emotionally fraught cases to predict whether parenthood is in their futures. A California Superior Court judge ruled in 2015 that a set of embryos be destroyed—the ex-husband’s desired outcome—even though the ex-wife wanted to use them. Cases that came before judges in Illinois and Pennsylvania, both concerning straight couples who created embryos before the women underwent fertility-threatening cancer treatments, ended with the women gaining possession of the embryos over their exes’ objections. Each judge decided that since the embryos represented the woman’s only remaining chance to have biological children, her right to carry them to term trumped her ex-lover’s right to decide not to have children with a former partner.
Though the uncertainty that accompanies these cases is a brutal burden to bear for those who want to be parents and those who don’t, a sweeping one-size-fits-all statute like Arizona’s has far more dire effects. Advocates for people with infertility have reason to believe the Arizona law could scare couples away from IVF, a procedure that has allowed hundreds of thousands of people to become biological parents under otherwise unlikely circumstances. If submitting to IVF means surrendering one’s genetic material for possible future hijacking by a disgruntled ex, would-be parents might opt out. In their crusade to save the frozen embryos of today, pro-lifers may be selling out the potential children of tomorrow.