A number of recent court cases disputing the custody rights of babies conceived through in vitro fertilization (IVF) have revealed the dangers of treating human life like property.
Sofia Vergara, the Modern Family TV actress, has been fighting her ex-fiancé, Nick Loeb, in a series of court battles over their frozen embryos. He wants to bring them to term; she does not. In August, a Louisiana federal judge dismissed the case as not subject to jurisdiction in Louisiana, since the embryos were conceived in California. Loeb likely filed the case in Louisiana since the state offers legal protections for embryos.
In another case, the Colorado Supreme Court has agreed to hear a dispute involving a divorced couple’s fight over the fate of their six frozen embryos. While they were married, Mandy and Drake Rooks had three children conceived through IVF. Despite divorcing in 2014, Mandy still wants the embryos, but Drake wants them destroyed.
Colorado’s district court and court of appeals both ruled in Drake’s favor. In support of Mandy, an amicus (“friend of the court”) brief was filed by the pro-life, nonprofit law firm Thomas More Society on behalf of the American Association of Pro-Life Obstetricians and Gynecologists.
“Current science has established that these embryonic children are the result of procreation and are not property,” attorney Rita Gitchell stated in the brief. She pointed out that, although “Roe v. Wade allows terminating a baby during pregnancy, it does not apply to a mother wanting to give birth. Nor does it grant a father the right to terminate his genetic child.”
Womb for Rent
Last year in California, 47-year-old Melissa Cook rented out her womb as a surrogate to a 50-year-old postal worker through a surrogacy broker company. The two never met and never spoke over the phone because the man known as C.M. is deaf and lives with his elderly parents.
The three embryos from his sperm and a donor egg all implanted into Cook’s womb. In an email, he asked her to abort the babies, saying he could not afford them. When she refused, he asked her to abort at least one.
Cook did not feel comfortable giving these children up to a father who wanted them killed, so she sued in district court. The judge, however, honored the contract and gave full custody to the father. Cook was not even allowed to see the three babies after they were born.
A brief in this dispute, referred to as M.C. v. C.M., was filed by the Thomas More Society before the U.S. Supreme Court Aug. 25 on behalf of five medical-ethics advocacy organizations.
Special counsel Sarah Pitlyk, who filed the brief, explained to the Register that a surrogate mother has no rights under California law, so Cook is challenging the law. “The judge saw nothing wrong with the surrogacy contract, so he upheld it,” Pitlyk explained. “It did not matter whether the father was capable of taking care of the babies.”
Pitlyk pointed out that in custody disputes or parental rights and adoption cases, there is a “best-interest determination for the children that does not exist in surrogacy cases.”
“Surrogacy is harmful to mothers and children, so it’s a practice society should not be enforcing,” Pitlyk added. The brief highlighted an array of troubling issues associated with surrogacy, including exploiting and commodifying vulnerable members of the human family, greater-than-usual medical risks to both mother and baby, and grave effects on society.
Need for Better Laws
The United States is one of the few developed countries where commercial surrogacy is legal, although it is covered by a patchwork of contradictory state laws and varying regulations. Four states — New Jersey, Washington, New York and Michigan — and the District of Columbia prohibit it.
According to Dr. Donna Harrison, executive director of the American Association of Pro-Life Obstetricians and Gynecologists, one of the organizations represented in the California surrogacy brief, embryos are being considered under property law instead of laws that govern family issues.
“People can buy human beings when they are embryos,” she said. “We’d like to see them treated under family laws that consider their best interest because that’s what it means to be a legal child. If most people think about, they would agree that these embryonic children should not be treated as property.”
Another case in California demonstrates the inadequacy of the law.
Jessica Allen had to fight for her own baby after she was hired as a surrogate by a Chinese couple. She gave birth to two babies in December 2016. DNA testing showed that one of the babies was Allen’s biological son — she had continued to ovulate after becoming pregnant.
The Chinese couple insisted on $22,000 to give back the infant. Since Allen and her husband’s names were not on the birth certificate and the surrogacy contract was legal, they had no legal right to their own son. It took two months of battling with lawyers before they finally were given custody.
There is an array of complicated issues surrounding embryos created through IVF. In 2008, the Congregation for the Doctrine of the Faith issued Dignitas Personae to explain that the creation of human beings must be the fruit of marriage, generated through an act which expresses the reciprocal love between a man and a woman, and from the moment of conception the child is to be respected with the rights of a person.
Father Tadeusz Pacholczyk, director of education and staff ethicist at the National Catholic Bioethics Center, told the Register the Church has an important role in helping people distinguish and discern the moral uses of biotechnology. “When the first test-tube baby was born in 1978, the serious moral concerns raised by the procedure had already been spelled out 22 years earlier, by Pope Pius XII, in his 1956 address to participants of the Second World Congress on fertility and sterility,” said Father Pacholczyk, who has a doctorate in neuroscience from Yale University. In that address, Pope Pius referred to experiments of human artificial conception as something that “must be rejected as immoral and absolutely unlawful.”
“The Church reminds us how new human life must be procreated in the warmth of the marital embrace and in the protective hearth of the maternal womb,” Father Pacholczyk said, “not in the icy, impersonal world of the research laboratory or the manipulative setting of a Petri dish.”
He acknowledged the pain infertile married couples yearning for a baby experience can tempt them to look to IVF. But he hopes couples can recognize the array of moral problems, including: how an anonymous laboratory technician produces their children, reducing their parental and procreative role, in effect, to mere donors of sex cells; how pornography and masturbation impinge on the origins of the children when parents employ IVF; and how they may produce a plethora of embryonic children, with some frozen and others discarded or destroyed along the way.
“The desire for children can be so strong that it can prevent us from acknowledging honestly the numerous evil aspects that are interwoven into our decision to pay a fertility clinic or other business to create children on our behalf,” Father Pacholczyk said.
One horrific result of IVF is that many embryos are used for experimentation and then destroyed. The Church adamantly opposes this.
Regarding embryos abandoned in frozen storage, whether to lay them to rest, implant them through embryo adoption or keep them in storage is a controversial issue. Some say that regardless of how they were conceived, human embryos are to be treated with dignity and given the chance for life. Others point out that doing so encourages the continuation of this illicit practice.
“Conception is still a natural process in the embrace of a man and woman, and IVF is outside of our natural biology,” according to Marilyn Coors, associate professor at the Center for Bioethics and Humanities at the University of Colorado’s Ansschutz Medical Campus. “All these complex issues point to the fact that our biology sets limits on our actions consistent with human flourishing.”
By treating embryos as property rather than acknowledging them as holders of the dignity of the human species, Coors said that we end up embroiled in complicated situations. She noted, however, that we must be careful with language so as not to hurt our brothers and sisters in Christ who have been conceived through IVF.
“Every child is made in the image and likeness of God, regardless of how he or she is engendered,” Coors said. “Even if the procedure is immoral according to Church teaching, God loves the child that results from any infertility treatment, and the Church teaches that we must love, cherish and treat those children with dignity and respect.”
Register correspondent Patti Armstrong writes from North Dakota.