Who Owns The Ova?

One of the most difficult questions a family court must address is custody of a child. The determination of which parent will better meet the best interests of the child is so difficult that it rises on occasion to the level of philosophical analysis.

The growth of medical technology and the ability of medical professionals to separate into various stages the process of giving birth to children has raised this difficult question to an even higher level of complexity. Medical technology has made it possible to preserve sperm from a male donor indefinitely by freezing and then making it available for artificial insemination or in vitro fertilization long after it is produced. Even more recent developments allow a woman's eggs to be harvested, either before fertilization for in vitro fertilization processes or immediately after fertilization for transplantation into a "surrogate" bearing mother who may or may not intend to be the psychological parent of the child that she is to bear.

The question of who should have the right to control the "product" of these medical processes, or the child born from them, is one of the most difficult issues to face the courts in recent years due both to a lack of legal precedent and the important public policy considerations inherent in any decision.

Only recently have the courts begun to be called upon to address these concerns. In the first decision dealing with custody of fertilized ova, a Tennessee Appellate Court reversed a trial court decision granting exclusive control over the disposition of frozen fertilized ova to the wife and mother¹. The Appellate Court granted the wife and husband joint control over the fertilized ova and equal voice over their disposition.

The fundamental question which courts must address in such cases is the question of what makes a person a parent. Traditionally little thought was given to separating the biological relationship from the potential psychological relationship; the biological parent was presumed to have absolute control over planning for the child unless his or her conduct seriously endangered the child. In the pre-birth custody situations, however, these issues can be complicated by the conflicting desires of the parties to allow or not allow the ova to be fertilized or brought to term.

In pure artificial insemination situations some of these questions have been answered by legislation. Where a sperm donor makes his donation anonymously through a licensed medical practitioner or medical facility, the donor is deemed to have no interest in a child produced by the subsequent use of his sperm. In essence all potential parental rights of the donor are cut off by the agreement to make an anonymous donation and the donor is not considered to be the father of the child. Where artificial insemination is performed with a known donor, however, the question is more difficult. Where the donor is the husband of the mother, in contrast, he is treated as fully the father and acquires all rights that any other father would obtain. Where the donor is not related to the inseminated mother², however, in several cases courts have allowed the donor some parental rights in the child produced by the insemination, at least where he alleged that he had been promised the opportunity to participate in raising the child. Essentially the issues have turned on the expectations of the parties at the time of the insemination or the contract for donation.

With surrogacy, problems facing the courts have been more difficult. Unlike the donor father, whose only involvement in the producing of the child is a brief encounter with a test tube at the sperm collection stage, the surrogate mother, whether the child is produced from her egg or a donated one, will have spent approximately nine months in bearing the child. Courts and legislatures have been far more reluctant to treat the relationship thus formed as one that can be severed on the basis of contractual obligation. In the Baby M case, the New Jersey Supreme Court treated the contractual surrender of parental rights by the surrogate mother as invalid as against public policy and treated the child as the "natural" or "birth" child of the father and the surrogate³. Similar contractual issues are being raised in the case of Moschetta v. Moschetta and Jordan.⁴ In that case the surrogate mother, Anna M. Johnson, is seeking to regain custody of the child she bore for the Moschettas in light of the breakdown of the marriage between the birth father and his wife, the intended mother. Her argument is that the Moschettas breached an implied provision of the surrogacy agreement providing that they would offer the baby a loving two-parent family. California, unlike New Jersey, has not rejected surrogacy for pay out-of-hand, but the question of the scope of enforceability of the surrogacy contract is being placed in serious question.

As complex as these issues are, the issues raised by the Davis case in Tennessee make them pale by comparison. In that case both the husband and wife had wanted to have children. They were married about nine years and Mrs. Davis had suffered some half dozen tubular pregnancies. The couple then contacted Dr. King and entered the in vitro fertilization program (IVF) under his guidance. After several IVF attempts Mrs. Davis failed to become pregnant and the parties abandoned the program and sought to adopt a child. The Davises located a birth mother and paid her medical expenses, but upon the baby's birth the birth mother changed her mind and decided to keep the child.

The parties then met again with Dr. King who informed them of a new program he was sponsoring, cryopreservation of embryos for future use. Under the program several ova could be aspirated⁵, inseminated in the laboratory with either the husband's or donor sperm, and, if the insemination process was successful the fertilized zygotes would be allowed to mature in the laboratory to the point where they could be implanted or cryopreserved⁶ for future use. In December, 1988 nine ova were surgically extracted from Mrs. Davis, were fertilized in a laboratory with Mr. Davis' sperm, and two were implanted in Mrs. Davis. The other seven were cryopreserved for future implantation. No pregnancy resulted from this implantation.

After the failure of the first attempt at implantation, the couple separated and an action for divorce was filed. In that action, Mrs. Davis sought custody of the embryos in order to have them implanted so that she could have a child, while Mr. Davis sought "joint custody" of the embryos, or to prohibit Mrs. Davis or anyone else from using the embryos for implantation until he could decide about their disposition, or in any case to prevent the consideration of anyone other than Mrs. Davis as a bearing parent for the zygotes.⁷

Mr. Davis argued that Mrs. Davis' use of the embryos without his consent forced unwarranted parenthood upon him. Further, he was opposed to producing a child who would live in a single-parent household, recalling the trauma of his own childhood when his parents divorced when he was six years old and he was sent, along with his brothers, to live in a boys' home until the age of 18.

The trial court saw as its preliminary task to answer the question " When does human life begin?" In order to make that determination the court first sought to determine if the zygotes were human beings, whether a substantive difference existed between a preembryo and an embryo, and whether the embryos might be properly treated as property even though they might develop into human beings.

Expert testimony on these questions was offered by both parties. Three experts opined that the entities were at a stage in development where they simply possessed the potential for life. They referred to them as "preembryos." The fourth expert testified that there was no such term as preembryo. There was no need for such a term, he opined, as there was "nothing before the embryo; before an embryo there is only a sperm and an egg; when the egg is fertilized by the sperm, the entity becomes a zygote; and when the zygote divides it is an embryo." The other three experts disagreed that the human embryos are in "being" or in existence. They stated that the entities merely had the potential for life. The three experts relied to some degree on the report of the Ethics Committee of the American Fertility Society which defined the word preembryo as follows

A preembryo is a product of gametic union from fertilization to the appearance of the embryonic axis. The preembryonic stage is considered to last until 14 days after fertilization. This definition is not intended to imply a moral evaluation of the preembryo.

The trial judge concluded that the term "preembryo" created a false distinction in this case. It then sought to determine whether the cells of the embryo were differentiated and to determine whether a unique individual existed at that stage of fetal development. The court determined that the genetic code for the individual was present at conception and animated the new person very soon after fertilization occurred.

One expert testified that the solution in the matter should be to let the embryos die a passive death. However, Mrs. Davis argued that in order to die, one must first live. The court found this argument persuasive and accepted it.

Another theory, proposed by Mr. Davis, was that the embryos constituted property jointly held by the parties and that the embryos did not represent life, but rather the potential for life. One expert picking up on this theme suggested that the embryos were properly treated as property and that the parties' rights in them should be determined in accordance with traditional property law.

The court concluded that the embryos were human beings and were not property. This was based on a finding that human life begins at the moment of conception. Having made that determination, the court then addressed the issue of the legal status to be accorded such an embryonic human being and the issue of custody. The court concluded that the doctrine of parens patriae should control the status of the "children" in vitro. The equitable thrust of the doctrine, reasoned the court, was the best interests of the child.

The court found that the best interests of "the children," in vitro, required that they be made available for implantation to assure their opportunity for live birth; implantation being their only hope for survival. The court further held that Mrs. Davis should be allowed the opportunity to bring these children to term through implantation. Temporary custody was awarded to Mrs. Davis for that purpose. All issues relating to support, visitation, final custody and other related issues were reserved for future consideration at the time that one or more of the embryos were carried to term.

The Appellate Court found that the trial court's award of custody of the seven ova to Mrs. Davis impermissibly infringed upon the husband's "constitutionally protected right not to beget a child where no pregnancy has taken place." It could find no compelling state interest to warrant an order requiring implantation of the embryos against the will of one of the parents. If further found that the trial court's award of custody of the seven fertilized ova to Mrs. Davis ignored the public policy implicit in state law and the rulings of the U.S. Supreme Court. The Court noted that it should be stressed that no pregnancy was involved. At the time of the appeal both parties were married to different spouses and neither wanted to share a child with the other parent.

Skinner v. Oklahoma recognized a persons's right to procreate as one of a citizen's "basic civil rights." Conversely, the Tennessee Appellate Court stated that an individual has a right to prevent procreation. "The decision whether to bear or beget a child is a constitutionally protected choice . . . ."

Thus the Appellate Court concluded that awarding the fertilized ova to Mrs. Davis constituted impermissible state action in violation of Mr. Davis' constitutionally protected right not to beget a child where no pregnancy had taken place. The Court looked for guidance to the State's policy on treatment of fetuses in the womb and observed that the foundation of Tennessee common law was based on Blackstone's observation that life begins in the contemplation of law as soon as the fetus stirs in the mother's womb. Tennessee's Wrongful Death Statute did not allow a wrongful death action for a fetus that was not first born alive, and the Tennessee abortion statute followed the trimester approach to abortion outlined in Roe v.Wade which looked to viability as providing the basis for state intervention. Thus the Court reasoned that only in the later stages of embryonic development were the embryos given more respect than mere human cells because of their potential for life.

The Court stated it would be repugnant and against constitutional principles to order Mrs. Davis to implant these fertilized ova against her will, but that it would be equally repugnant to order Mr. Davis to bear the psychological if not legal consequences of paternity against his will. The case was remanded to the trial court to "enter a judgement vesting [Mr. Davis and Mrs. Davis] joint control of the fertilized ova and with equal voice over their disposition."

With the introduction and acceptance of such reproductive technologies, there is a real need for legislation to deal with the issues created. To date, there has been relatively little attempt to regulate the performance of in vitro fertilization by the state and federal government. Several states have mandated the inclusion of in vitro fertilization within the coverage of various forms of medical insurance. Only four states have attempted to directly regulate in vitro fertilization and the approaches are different.

Illinois provides for the preservation of the life and health of the fetus as part of its abortion law. Kentucky similarly provides for the performance of in vitro fertilization in its abortion law. New Mexico's Maternal, Fetal and Infant Experimental Act excludes in vitro fertilization from its coverage, thereby allowing it.

Louisiana is the only state which has attempted to create a comprehensive scheme for the regulation of in vitro fertilization. It deals with such issues as the prohibition of the sale of a human ovum. The ovum is characterized as a biological human being and not property. The safekeeping of the ovum is addressed, as well as provision for a liability action on behalf of the ovum, issues of custody, and inheritance rights.

Where the semen donor is the husband of the ovum donor as in the Davis case, there should be no question as to the parentage of the child and the questions will turn on possession of the zygotes and the resultant children and responsibility to them. However, what happens when the semen donor is not the husband of the ovum donor or where the zygote is implanted in a woman other than the donor? In the first situation the child is biologically that of the bearing mother, but not of her husband (if any). This situation is essentially the same as that in artificial insemination and should be treated similarly. However, in the second scenario, the issue of parentage, while in some ways similar to that in surrogate parentage cases, has not yet been addressed by the courts. The Louisiana statute has addressed this issue providing that if the donors renounce their parental rights for in utero implantation the ovum becomes available for another woman who becomes the mother of the child born. Like the surrogate parenting situation, the issue becomes one of the reactive superiority of biological and contractual rights to the child. The Moschetta case and the Baby M case begin to address these issues.

It is arguable that the U.S. Supreme Court's Decision in Carey v. Population Serv.Int'l. supporting the right of individual autonomy in matters of child bearing gives the donor the greater right. However, this argument gives a great deal of weight to the use of the term "childbearing" in a context not intended by the Carey Court. If the semen of the husband of the recipient mother is used, is the scale now tipped in her favor? If a release is signed by the genetic mother will this suffice as assurance should she bring action to take the child once it is born? What if there were monies exchanged? What if a potential donor of ovum refuses to honor a contractual obligation to submit to laparoscopy for removal of the ovum or refusal to allow the ovum to be used by the recipient? It is unlikely that a court would force someone to involuntarily have the ovum aborted, especially in light of U.S. Supreme Court doctrine and the Davis decision. What if it is determined that the child to be born will have a birth defect? It would seem clear that the recipient could not be forced to either abort or not abort the child in such circumstances.

The answers to these questions are not clear. What is clear is that neither the law nor moral principles provide the necessary answers to these questions. Traditionally genetic ties have provided the foundation of parentage. However, technology has far outpaced the law. The separation of genetic contributions and those of bearing contributions pose new dilemmas. One solution is to treat the disputes which may arise as custody questions. This solution, however, creates other problems. For example, in many cases each parent would undoubtedly want sole custody, yet arguably neither parent would have committed any act which would be the basis of termination of their parental rights under existing law.

The Louisiana statute on human embryos addresses this dilemma. The ovum and semen donors are given first priority as parents of the child unless they renounce their rights by notarial act prior to the implantation of the fertilized ova. The Uniform Status of Assisted Conception Act approved by the National Conference of Commissions on Uniform State Laws on August 4, 1988 appears to deal with this situation and protects the recipient. However, it ignores the situation when the donor is the person seeking to obtain a child.

Should the payment of medical and legal expenses to the donor or to the recipient be allowed? Is such a payment a payment for the purchase of a child, an issue addressed at length in the "Baby M" case? In "Baby M," the argument that the payment was for the surrogate mother's services, and not for the adoption, held little sway with the New Jersey Supreme Court which held that the payments were violative of the State's adoption law.

As practitioners in this area, we are clearly sailing in unchartered waters. When a couple is using IVF, the role of counsel is to advise them of the necessity of obtaining a suitable medical practitioner knowledgeable in the process. Counsel might assist in ascertaining whether the parties' medical insurance will pay for the process. When the donor mother is not the recipient mother or where donor sperm is used, the role of counsel becomes more delicate. All suitable protection should be employed to provide against a future claim to parentage by the donor including adoption by either of the recipient parents if not the biological progenitor. The question of who owns the ova or who has a right to its custody or that of the child produced by other alternative reproductive mechanisms remains to be resolved.

Reprinted with permission from the New Jersey Lawyer Magazine,
a publication of the New Jersey State Bar Association

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