Stories of couples splitting up, then fighting over frozen embryos pop to the fore every now and then. There’s Sofia Vergara’s battle with her ex-fiance, now avowed opponent of abortion Nick Loeb, who wants to use embryos they created together against her wishes. Loeb tried to move the case to Louisiana, the only state that gives embryos standing to sue, but a Louisiana judge ruled against him—initially as a non-resident—and determined the embryos are “citizens of California.” So then Loeb “moved” to Louisiana to take a second shot at a win—and it seems he may have gotten it.
On his second attempt in Louisiana, Loeb sued under the Uniform Child Custody Jurisdiction and Enforcement Act. Vergara fought to remove the case to federal court, arguing that the law covers children, not embryos, but Loeb took the case back to state court. There, the judge determined it’s a “custody case over which federal courts lack jurisdiction.” Both the removal to state court and the judge’s wording bode poorly for Vergara.
Now Arizona’s creeping in Louisiana’s direction. It hasn’t given embryos full personhood, but legislators have passed a law—in effect as of July 1—that specifies what happens to frozen embryos in the event of disagreement over the disposition of embryos upon divorcing. Whichever spouse intends to use the embryos gets the embryos from now on in Arizona, effectively forcing parenthood upon the spouse that doesn’t want them used.
The argument underlying the law is that embryos are people; they should be treated as children under law. Once someone has voluntarily contributed to the formation of an embryo, that embryo’s right to life supersedes the contributor’s rights—meaning they “cannot be legally terminated at the whim of others,” as the Thomas More Society puts it.
Anti-abortion groups like the Thomas More Society have been crusading for frozen embryos’ rights all over the country. If the Arizona law’s upheld, their next step would be getting a court to declare that just as an embryo in a freezer has rights, so too does an embryo in utero.
“The new law is in fact an end around aimed at establishing the ‘personhood’ of unborn embryos,” confirms Rich Vaughn, chair of the American Bar Association’s committee on fertility technology and founder of the International Fertility Law Group.
The law specifics that the objecting spouse “has no parental responsibilities … and no right, obligation or interest with respect to” any children that come of using the embryos. On the one hand, that means the objecting spouse won’t be liable for child support; on the other, they’ll become a biological parent without consent and forfeit any right to see the child that’s half genetically theirs by the simple act of opposition.
That’s also problematic.
While someone may object to the use of embryos by a former spouse, that doesn’t mean they wouldn’t want contact with a child who comes of those embryos. Unlike a sperm or egg donor, these are individuals who have contributed gametes at one point in time for the specific purpose of having a child with another person. They did not choose to contribute sperm or egg with the understanding that they would not have rights to, or ever meet, a child that came of those embryos.
At base, the new law amounts to forced parenthood on Arizona’s terms. In truth, it’s even worse than that. This law represents a major breakthrough for anti-abortion activists who want to embryos to be treated as people in law. In most courts, the wishes of the spouse who doesn’t want to become a parent prevail. But now they’ve found a way around that dilemma: Convincing the legislature to tell the courts how to rule. In so doing, they’ve set up the potential for a major legal challenge over the rights of embryos.
What’s especially threatening about the prospect of a case over frozen embryos in storage making it to the Supreme Court is the latitude the divorce of embryos from a woman’s body offers the anti-Roe v. Wade contingent. Without the rights of the person carrying a pregnancy to counterbalance “interest in protecting potential life,” this court might gleefully redefine the status of embryo in law outside of the Roe framework.
It’s easy to envision such a decision, laden with “newly discovered” pseudo-science. In my head, it’s written by Neil Gorsuch, and he goes on for pages about pseudo-scientific developments that require the court to reconsider prior assumptions about embryos—all in his floridly condescending style, of course. The lives of potential children across the country are at stake, he would say. He’d probably overstate the number of people willing to use others’ frozen embryos to dispel concerns about how this ruling could affect the hundreds of thousands of embryos in storage. Gorsuch would probably suggest that Roe v. Wade is next; he can’t help himself.
The Supreme Court could then use that decision to eliminate Roe, if they haven’t already. (It’ll be a bit before a case presenting the embryo issue reaches SCOTUS.) In that opinion, Gorsuch would treat us to an imperious discussion of how the decision about embryos—lets call it Loeb v. Vergara—makes it incumbent on the court to depart from stare decisis, the doctrine holding courts should follow precedent, with respect to Roe. He’d toss in more pseudo-science, this time about how abortion harms women. Officiously, he’d write that the court cannot ignore science. The lives of women and children are simply too important to sacrifice to an abstract legal doctrine never meant to be an absolute bar on overturning precedent, he would conclude.