After going through the stress of many in vitro fertilizations, I vivdly remember signing a paper giving the unused embryos to scientific research. In my mind, it was the least I could do since, thanks to this modern day miracle, I could possible conceive the child I so desperately wanted.
But I also realized that the pain — both physical and emotional — of this process could also break couples apart. It was right there in front of me, as I witnessed the cumulative strain on people in the waiting room.
What, I wondered, would happen to their embryos if indeed they broke up? A woman on fertility drugs can produce as many as 20 or 30 eggs. Who would get them?
The nurses would smile and tell me not to worry about it, especially since my husband and I were, they said, such a happy couple. Naturally the reporter in me wanted answers. Where exactly did the embryos go? Did they go into one large unpatrolled laboratory where a rogue nurse would sell them elsewhere. And then, in years to come, I'd meet my lookalike in the mall.
Yes, I know, it seems like something out of a Robin Cook medical thriller, and I laughed at how fertile my imagination could be. So did the nurses. Everything, they assured me, was properly monitored and nothing could happen to the embryos without both parents’ consent.
With in vitro fertilization (IVF), doctors usually implant no more than four fertilized eggs to prevent high-multiple births. In Oregon, a divorced couple split on what to do with their six frozen fertilized eggs, and the case ended up in the Oregon Court of Appeals.
Laura Dahl and her former husband, Darrell Angle, had stored their “embryos” with Oregon Health and Science University, where she had undergone IVF. (For the sake of argument, the court called the fertilized eggs “embryos,” although they said that, technically, they would become embryos only once implanted in a woman’s womb.)
Upon their divorce, Dahl decided that the embryos should be destroyed but Angle argued they should be donated to couples trying to conceive. Mom argued that she didn't like the idea of a child with their DNA being raised by someone else, and worried that the resulting child might try to reach the son she and her husband had already conceived, the court ruling noted, “traditionally.”
Luckily for the court, their IVF agreement specified that the wife would have the right to decide the disposition of the embryos if the two of them could no longer agree what to do. And failing any agreement between the two of them, or instructions from the wife, the agreement stated that the Oregon Health and Science University could use the embryos for scientific research.
The IVF agreement did leave room for a subsequent legal decision, obviously a reference to a divorce agreement. Which is why, ladies, everything (and I mean everything) should be in writing.
The lower court granted the wife the right to make the decision, as determined in the detailed agreement they had signed with the Oregon Health and Science University.
The husband then appealed, saying that the embryos represented life, and could not be treated as if they were property.
The Oregon Court of Appeals ruled unanimously that the lower court’s decision was affirmed. The wife had the right to decide (based on the contract they had signed) what to do with the frozen embryos.
In an opinion written by Presiding Judge Rex J. Armstrong, and released last week, the Oregon appellate court cited one of the most significant rulings on such cases, from the New York Court of Appeals in 1998, which affirmed the right of privacy based on Roe V. Wade and said that, “To the extent possible, it should be the progenitors [the parents], not the state and not the courts, who by their prior directive make this deeply personal life choice."
Yes, it should be. So remember, in whatever decisions you make as a couple, put in writing what should happen if everything unravels.