When Parents Divorce, Who Gets Custody of the Frozen Human Embryos?

Abortion jurisprudence and unregulated artificial reproduction present a huge challenge for state courts.

Tens of thousands of embryos remain frozen in fertility clinics around the United States, like this one in Fort Myers, Florida, in limbo or abandoned by couples who can’t agree or have legal proceedings underway to decide what happens to their frozen children, such as a case being considered by the Connecticut Supreme Court.
Tens of thousands of embryos remain frozen in fertility clinics around the United States, like this one in Fort Myers, Florida, in limbo or abandoned by couples who can’t agree or have legal proceedings underway to decide what happens to their frozen children, such as a case being considered by the Connecticut Supreme Court. (photo: 2018 AP photo/Lynne Sladky)

HARTFORD, Conn. — When parents split up and cannot agree on what happens to their frozen human embryos, who gets custody?

The Connecticut Supreme Court is the latest judicial body to take up a problem created by the onset of artificial reproductive technologies that have flourished in an unregulated environment.

During April 30 oral arguments in the case of Timothy Goodwin v. Jessica Bilbao, the justices wrestled with whether a frozen human embryo should be considered marital property, a legal person or something in between under the law — a discussion indirectly affected by Roe v. Wade and abortion law.

Timothy Goodwin and Jessica Bilbao, who have six children between them, had conceived two embryos via in vitro fertilization (IVF) technology. A daughter, Isabella, was successfully implanted and carried to term in 2011. However, a second human embryo was left frozen and never implanted as the couple’s marriage broke down.

As part of the divorce proceedings, Bilbao had asked the trial court in Hartford to enforce a contract she and Goodwin had signed with the fertility clinic stating that, in the event of a divorce, the remaining embryo would be destroyed since she did not want to be a parent of another child against her will.

Goodwin, however, argued he changed his mind following the birth of daughter Isabella and wanted to have the second embryo adopted, implanted into another woman, and brought to term.

Superior Judge Robert Nasri ruled in October 2017 that “the embryos are not purely property, nor are they persons, but they are deserving of respect.” He found the contract Goodwin and Bilbao signed for cryogenically storing their embryos was not determinative, but ruled in favor of Bilbao, citing the 1992 Tennessee case Davis v. Davis. The Tennessee Supreme Court overruled a lower court’s decision to award frozen embryos to their mother for future implantation. While stating the embryos were neither persons nor property, the Tennessee high court gave custody to the father, who objected to having more children and wanted the embryos destroyed.

Nasri reasoned, based on that precedent, that the right not to procreate outweighed the other parent’s right to parenthood unless no other means were available. Because Goodwin already had six children, he decided Bilbao could have custody of the remaining human embryos, which she wanted destroyed.

Goodwin then sought legal counsel and appealed to the Connecticut Supreme Court, which took the case last month.


Whose Best Interests?  

Goodwin’s attorney, Joseph Secola, argued April 30 the court should consider the “best interests of the child standard” in making a decision about the custody of the human embryo.

“The decision to procreate has been made. There is a frozen human embryo sitting there,” he said. “What’s going to happen to it?”

Secola said the lower courts “have been all over the place” in determining the status of the human embryo as a person, property or somewhere in between. Amicus briefs submitted in the case stated modern embryology has established the human embryo is an independent organism of both mother and father.

 Secola argued that when parties disagree, presumption should be in favor of the party that wants to keep the child, rather than the party that wants to destroy the child.

“Are we going to err on the side of life or the side of death? That’s the real issue here.”

Rita Gitchell, special counsel for the Thomas More Society, which submitted an amicus brief on behalf of the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG), told the Register the science the Davis decision was based upon is now outdated. The amicus brief states the Davis decision relied on faulty science that hypothesized human embryos prior to implantation were “undifferentiated placental cells” or “pre-embryos” — a term Judge Nasri used in his decision — but modern embryology no longer holds that science or uses that term.  

“Modern science should be considered by the court,” she said.

Scott Garosshen of the Horton, Dowd, Bartschi & Levesque firm, representing Bilbao, asked the court to reject the appeal based on existing law. Garosshen said the Connecticut Legislature had made it “clear that embryos are not treated as a legal person precisely for those concerns over what that would mean for procreative rights and the rights of privacy.”

Recognizing the embryo as a person in this case, Garosshen argued, would have direct bearing on the legal rights of embryos in the womb and undermine abortion law. However, Secola argued that the law already had many unresolved inconsistencies where unborn children were treated as legal persons in one case, such as recognizing unborn children as potential heirs to an estate, and not others. Recognizing the embryo’s best interests in this case, he added, should have no bearing on Roe v. Wade and abortion rights.

Garosshen argued the contract Goodwin and Bilbao signed is meant to protect the parties from procreating without the other party’s consent, and “That right to say ‘No’ is something we shouldn’t deny with [artificial reproductive technology].”

Secola pushed back against the notion, stating, “The decision to procreate has been made already by both sides” and suggested the Connecticut Supreme Court could order a new trial so the factual record could be thoroughly developed on which to make a judgment about the status of the embryo in order to conduct a balancing test.

“There is certainly a human organism independent of the mother and the father,” he said.

The Connecticut high court’s justices, however, struggled with the fact that attorneys were raising new arguments and facts not reflected in the original record from the trial court — a consequence of the fact that both Goodwin and Bilbao originally had represented themselves before the trial court and only later sought legal counsel.


Legal Dilemmas

Complicating the issue of parental custody of human embryos is legal abortion and the potential impact of recognizing the human embryo as having its own claims independent of its parents.

“Abortion itself has fundamentally confused the law on this point,” John Brehany, director of institutional relations at the National Catholic Bioethics Center, told the Register.

“IVF is creating so many legal dilemmas, it is really hard to count them,” he said.

Brehany said Catholic moral theology teaches that destroying the human embryo is immoral because it is directly taking a human life. But the difficult question remains: “What is right in this case?” And the Vatican instruction Dignitatis Personae, he said, could not find any moral remedy and stated this is “a situation of injustice which in fact cannot be resolved.”

“We have hundreds of thousands of children stored in liquid-nitrogen coolers,” he said.

Ed Mechmann, an attorney at the Archdiocese of New York and archdiocesan director of public policy, told the Register that cases like the one before the Connecticut Supreme Court show how reproductive technology has become a Wild West in the absence of legal regulations.

“So much depends on where you’re located,” he said. “Here in New York, our Court of Appeals [the state’s high court] decided that frozen embryos are marital property.”

In New York, an agreement on how to dispose of human embryos would be enforceable, but in other states, “it would not be so easy.”

Mechmann said some state courts have looked at embryos as “more than property but less than legal persons.” It is a middle ground where the court stops short of granting an embryo legal personhood, but also recognizes that the embryo cannot simply be discarded.

Mechmann said the situation exemplifies why the Holy See warned that IVF created situations that were “almost impossible to resolve.”

The cases illustrate a painful reality introduced by artificial reproductive technologies that create surplus human embryos whose fates are left in stasis when their parents break up.

One high-profile instance involves businessman Nick Loeb and his former fiancée, model Sofia Vergara. Vergara wants their frozen embryos destroyed, while Loeb wants to attempt to bring his daughter to term. Loeb, the executive producer of a new movie on Roe v. Wade, told the Register that, “in a balancing of interests, the right of life should outweigh the right of not wanting to be a parent.”

“They already made a conscious decision to create life,” Loeb said. “If one person wants to take care of that life, they should have that right, as it doesn’t affect the right of privacy or choice.”


Regulating Fertility Industry

Mechmann said Roe v. Wade “both applies and does not apply” in determining cases about frozen embryos.

Mechmann added Roe looms behind it, “because the personhood issue is the line of combat. Virtually all abortion cases hinge on that issue of ‘when are we going to recognize the legal status, or personhood, of the unborn child?’” he said.

In more liberal states, he said, courts “bitterly defend” the non-personhood of the unborn child and avoid any attempts to moderate that position.

But the suit between Bilbao and Goodwin is not likely to end up before the U.S. Supreme Court. Mechmann explained the case does not involve constitutional or federal issues, and the jurisprudence around Roe does not strictly apply to their case.

Mechmann explained the tragedy of these frozen-embryo cases, and their increasing number, shows why the U.S. needs to do what European nations have done and “enact nationwide legislation that regulates this industry.”

“The courts are struggling with this,” he said. “And they’re faced with: There being no good way out of this.”

Peter Jesserer Smith is a Register staff writer.