Spurred by national headlines over high-tech custody battles, the American Bar Association is considering its first-ever policy on frozen embryos.
In divorce cases where embryos are at issue, "the bottom line is who gets custody," said Pittsburgh lawyer Bruce Wilder. "We hope to get some rationale out to the trial courts, to help them decide the issue when one particular set of facts exists."Wilder helped write a proposal that the ABA's policy-making House of Delegates will be asked to endorse Monday.
Some couples who experience reproductive problems can have the wife's ovarian eggs artificially fertilized with the husband's sperm. But what happens in divorce when the couple cannot agree as to whether one or more of those embryos should be gestated to term?
In such cases, the proposed ABA policy makes a loser of the spouse who wants to destroy the embryos or preserve them for an indefinite time.
"Possession and control of all the frozen embryos" would go to the spouse who favors gestation and is willing to assume parental rights and responsibilities, the proposal states.
"We know this is a sensitive issue, touching on the constitutional right to procreate or decide not to procreate," Wilder said. "But when do those rights begin and end?"
Under the proposal, creation of an embryo would make any decision not to procreate legally moot.
"There is some controversy," Wilder acknowledged. "People tend to link this to the abortion issue."
The anticipation of such controversy caused the proposal's backers to withdraw it from ABA consideration last year. This time, the proposal has the support of the 346,000-lawyer organization's board of governors. No organized opposition has surfaced.
ABA President Jerome Shestack called the frozen-embryo issue one that "comes up more and more in domestic-law courts" and said he expects a "very enlightened debate" before the ABA's policymakers.
The proposal also makes clear that the spouse who favors destruction or continued storage of embryos "should not acquire any legal rights or responsibilities as a parent . . . by virtue of biological parenthood."
That spouse "should be deemed to have relinquished all present and future claims of parental rights and responsibilities," the proposal states.
And it says a child resulting from any embryo in such cases never can assert any legal rights against the spouse who opposes childbirth.
"Child support was an issue we thought needed to be addressed," Wilder said. "There shall be none."
The proposal does not commit the ABA to any position regarding the disposition of frozen embryos in those cases in which a couple agreed that embryos could be destroyed at the urging of either one of them.