People or Property? IVF and Surrogacy Have Opened a Pandora’s Box of Law

Two high-profile U.S. cases highlight how the departure from Church teaching on procreation has created dilemmas with no easy legal or moral resolution.

Actress Sofia Vergara and Nick Loeb, shown attending the 100th Annual White House Correspondents' Association Dinner in 2014, are embroiled in a dispute over ownership of frozen embryos the couple conceived via in vitro fertilization.
Actress Sofia Vergara and Nick Loeb, shown attending the 100th Annual White House Correspondents' Association Dinner in 2014, are embroiled in a dispute over ownership of frozen embryos the couple conceived via in vitro fertilization. (photo: 2014 photo by Dimitrios Kambouris/Getty Images)

LOS ANGELES — For decades, the Catholic Church has warned that in vitro fertilization and surrogate motherhood would lead to human beings being treated as commodities. Today, legal battles are raging in the United States, where the courts must decide whether human embryos have the rights of children or the status of personal property.

In Los Angeles, businessman Nick Loeb and ex-fiancée and Modern Family star Sofia Vergara are locked in a bitter dispute over two of their embryo children they created through IVF and froze while they were engaged. While they were engaged, the couple had agreed not to use the embryos without mutual consent.

But now that they have split, Vergara wants to destroy their embryo children, while Loeb is suing her for custody in order to save their embryos from destruction, with an aim to bring them out of the freezer and give them a chance to be born through a surrogate mother.

Loeb’s legal battle is being assisted by the Chicago-based Thomas More Society (TMS), which has submitted an amicus brief to the trial court.

The Thomas More Society is also engaged in a similar case in Missouri involving a couple that used IVF and then split. In McQueen v. Gadberry, Jalesia McQueen and then-husband Justin Gadberry created four human embryos with IVF: Two were implanted in McQueen, who bore twin boys, while the other two embryos were put into frozen storage. Now divorced, McQueen is fighting her ex-husband for custody of their embryos.

Both custody cases involving the embryos hinge on a central question: Are they property or are presumed to be children?

“Keep in mind that in a divorce case where parents separate, they fight over property and children,” said Thomas Olp, one of the TMS attorneys involved in both cases. When it comes to property disputes, it involves only the parents’ contested rights. “But when it comes to children, children have rights, and they actually trump the rights of the parents.”

Olp said the court ordinarily has to go through an analysis to determine “what is in the best interests of the child.”

The Thomas More Society filed amicus briefs in the Loeb case on behalf of the National Catholic Bioethics Center (NCBC) and the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), which is also involved in the McQueen case.

The attorneys are seeking to present the latest scientific evidence for the humanity of the human embryos to persuade the court to treat them as children, not property.

“Our job is to educate the courts and the public about the biological and scientific status of the human embryo from day one,” Olp said.


Contract With Death

Rita Gitchell, special counsel with the Thomas More Society, added that there is an issue of informed consent at stake for people who engage with the fertility industry. She added that if the law establishes the child as a “piece of property,” it will pave the way to argue that a contract for surrogacy to carry life also involves “a contract to destroy.”

“It’s a very important issue for our time, and it’s going to be an issue for the entire century,” she said.

Donna Harrison, AAPLOG’s executive director, told the Register that her organization is involved in these cases because the concept of the embryo as “property,” instead of as a person, can have serious implications for the protection of human life from the moment of fertilization to the time of natural death once precedent is set.

“Anytime you have human beings viewed as property, such as the horrors of slavery or what happened in Europe during World War II, there is this concept that you can have a human being without human dignity,” she said.

AAPLOG does not have a public position on IVF itself. However, Harrison said that there is concern that these IVF cases will pave the way for women who act as surrogate mothers to be forced to have abortions if the “intended parents” decide that they want to destroy what the law might establish as “property.”

“First of all, forced abortion is simply horrible,” Harrison said. But abortions in the second trimester, the stage where fetal imperfections might be discovered, carry higher risks to the surrogate mother’s health and life.

“We’re not only concerned about forced abortion from surrogate from the standpoint of killing the human being inside her womb; we’re concerned about the damage that happens to the surrogate who is treated as a slave,” she said.


Surrogacy Nightmare

In California, Melissa Cook, 48, is fighting for custody of one of the triplets she is bearing as a surrogate mother after the Georgia man who contacted her exerted enormous pressure to force her to abort the third child, which he said he could definitely not afford. Cook refused, saying she was pro-life, and offered to adopt the child; but with one of the surrogacy broker’s owners acting as his lawyer, the man threatened Cook with financial ruin for breach of contract if she did not agree to “selective reduction.”

In documents filed with the California Supreme Court, the Georgia man demanding custody of the unborn children — all now past 23 weeks gestation — is single, supports two aged parents on his salary as a postal worker, has a hearing disability and admitted that he spent his entire life savings on the IVF-surrogacy procedures and could not afford to pay for the entirety of Cook’s care. The court documents said the man, referred to as “C.M.,” contracted with Surrogacy International, a broker which provides surrogates to men who want children. The sperm came from C.M., while the ova came from an anonymous woman as the donor.

“This case shows the absurdity of surrogacy,” Michael Caspino, who is part of Cook’s legal counsel, told the Register. Caspino said California’s surrogacy laws changed on Jan. 1, 2015, with the new statute, Family Code Section 7962, having profound implications for the reproductive rights of women.

“Under this statute, the intended parents can gain custody of the children in the womb of the surrogate mother — that is what the statute allows for, and we’re fighting that,” he said.

“This man is not competent to be the parent of these children — he has admitted it — yet under the statute, the court must give him custody of the children.”

Caspino said they are arguing before the California Supreme Court that the surrogacy statutes in California are unconstitutional and violate the surrogate mother’s due-process rights. Caspino said they want the court to declare that the “intended parent” is not the “owner” of the unborn children carried by the surrogate mother and that the surrogate mother cannot be compelled to abort them.

“We need to rethink surrogacy as a whole,” he said, explaining that it is forcing society “to travel down a merry yellow-brick road of unintended consequences.”


Church’s Teaching

Dignitatis Personae, the Vatican’s 2008 instruction on IVF, surrogacy and other bioethical questions, affirms the teaching of St. John Paul II that the “various techniques of artificial reproduction, which would seem to be at the service of life and which are frequently used with this intention, actually open the door to new threats against life.”

“The Church, moreover, holds that it is ethically unacceptable to dissociate procreation from the integrally personal context of the conjugal act: Human procreation is a personal act of a husband and wife, which is not capable of substitution,” it stated.

Father Tadeusz Pacholczyk, director of the National Catholic Bioethics Center, told the Register that the Church’s insight is that human beings deserve to come into the world in a way of “personal self-giving.”

“Normally in the marital embrace, you are not making babies really; you are making or giving love to each other — and in the midst of that love, in an unanticipated way, life may be engendered,” he said. “But you’re not making life. But if you take the direction our society is taking and say, ‘Now we can make life,’ then you cheapen that life.”

Father Pacholczyk said that the Church recognizes that infertility is a source of suffering for many couples. But the Church promotes solutions in line with human dignity, such as NaPro Technology, where specialists work with couples to identify and treat the underlying causes of infertility and so enable a couple to conceive and bear children.

The Church also promotes adoption as a way in which God may be offering a couple the chance to turn their infertility into an opportunity to bless a child without biological parents with a family.

He said the problem behind IVF is also spiritual: The notion that a person is “entitled” to a child or that  a child can only be biological — “it’s my DNA or nothing else” — is wrong thinking.

“No one has a right to a child; a child is not a piece of property we are entitled to,” he said. This assumption is underlying changes in the law.

The challenge for U.S. society is to put the brakes on the fertility industry’s “mass assembly-line productions” of human life. He said following Italy and Germany’s examples of enacting strict laws to regulate heavily the industry’s activities — no more than three embryos created, and they all have to be implanted inside the mother — would at least constitute an improvement over the current American situation.

Father Pacholczyk said, “It is a reasonable law — not a Catholic law — but it is just a law that would limit the unpleasant collateral damage that goes on in our country in the complete absence of regulation.”

Peter Jesserer Smith is a Register staff writer.

ACLU vs. Catholic Hospitals

Report claims that because these hospitals follow Church teaching in regards to reproductive care, they put women at risk, but Catholics defend quality health care and rights of Church-run institutions.