Debates over who has the rights to embryos in cryogenic storage after a divorce is heating up, after a highly public case involving the celebrity Sofia Vergara. In that instance, Vergara wanted to stop her ex-fiance from using the embryos they had created together, while he wanted to have them implanted in a surrogate.
In Colorado, another such case is now moving through the court system. When the Rooks were married, they used in-vitro fertilization to have three children, but six embryos remained. Now that they are divorced, the father would like to destroy those embryos, but Mandy Rooks says she wants to keep them for future implantation.
The Thomas More Society, a non-profit public interest law firm, has filed an amicus curiae (friend of the court) brief on behalf of the American Association of Pro-Life Obstetricians and Gynecologists in an effort to help Mandy Rooks keep her embryos.
An attorney for the society, Rita Gitchell, argued that the divorce attorney had made a mistake in assigning the embryos “as marital property in the divorce.”
She argued, “These embryonic children are the result of procreation, and are not property.”
There are hundreds of thousands of frozen embryos in storage around the country. While some are awaiting transfer and implantation, some are merely waiting for a decision to be made about their eventual fate. In the United States, there’s no legal limit on how long embryos may be stored, although some other countries regulate it. In the U.K., for instance, it’s ten years.
Some parents donate their ‘extra’ embryos to other infertile couples, and some to medical science. Many people put off making the decision by continuing to pay for storage almost indefinitely. There’s long been debate among Catholic ethicists about the morality of so-called “embryo adoption,” with some contending it’s a life-saving imperative and others seeing it as complicity in an inherently immoral procedure, meaning in-vitro fertilization.
Although an embryo has been transferred and implanted successfully after having been frozen for thirteen years, there is no hard and fast scientific conclusion about how long they can last in the abstract.
The divorce scenario is an increasingly common one, and the laws in states have not kept up with the technology. As long as frozen embryos are considered property, judges have wide discretion about how to treat them in a divorce.
Without specific legislation, in some states it may remain up to couples to consider these issues in pre-nuptial agreements.