When Does Parenthood Begin in Assisted Reproduction Decision-Making?

This thought-provoking guest post is provided by Ana Moran, Regent University School of Law LL.M. student currently taking Family Law.

While discussing embryo-custody cases in Family Law, I realized the recurring problem that arises between future parents and their reproductive decisions is the fact that at the moment of signing a contract for their medical treatment with a fertility clinic many have not agreed about the future of the embryos.  This makes me think about two relevant issues for attorneys to be aware of on behalf of their clients in the process of deciding for responsible parenthood through assisted reproductive technology (ART) procedures: first, the medical and ethical role of the specialist involved in the ART procedures, and second, parenthood preparation and responsibility.

In reference to medical ethics, beyond the role of informing clients of the risks of ART and how the procedures will take place, the ethical role of clinics can help future parents to consider and determine how many embryos will be needed for their specific circumstances.   Clinics ought to be required to have certain maximum standards according to experience and health statistics which might be helpful for a couple to decide what number of embryos is suitable for them.  Furthermore, clients need to consider consulting with an attorney on appropriate and necessary provisions regarding the disposition of their embryos or gametes in the eventual situation of a marital or family breakdown, as an essential question to solve before entering into such a contract with any fertility clinic.  These practices could greatly assist a couple toward contemplating realistically their future as parents.

Secondly, because parenthood is more about sacrifice of oneself than it is about expending or reaping material rewards, rather than simply thinking about their own desires of being parents couples need to comprehend the degree of seriousness which their decisions will take over a third person’s life and future.  These kinds of decisions need to be very well defined beforehand. Differently than an unassisted natural course of pregnancy, a couple who decides to have a child through ART has had the opportunity to think and meditate on all of what the procedure itself implies, affording that couple a better chance at some point to continue, reconsider, or even stop the process. Moreover, to avoid embryo-custody problems at the end of a marital relationship, couples using ART have effectively had more time to reflect on becoming parents or not.

I agree that no one goes to a fertility clinic wishing to conceive and at the same time thinking about splitting up with his or her partner, however, divorce can be a reality when the stress of ART takes its toll on the marriage and the decision to become a parent.  If the couple, however, considers in advance the future of the third person they are creating, and the fact that they would rather choose what is best for that child than to leave such a significant decision in the hands of a judge, they may agree to think more comprehensively about giving their consent for creating that third person. It is quite possible that the fact that the potential parents cannot agree on something as essential for the future of their embryos as their fate in the event of a family breakdown suggests that enough preparation for becoming parents has not yet occurred. 

In any event, all these questions and problems that arise related to the destiny of a potential child brought into the world through ART just might alert us to the fact that parenthood decisions and parental responsibility begins long before a child is born.

                                                                   -Ana Moran

If you are interested in personally responsible decision-making in the use of assisted reproduction see A Hitchhiker's Guide to ART: Implementing Self-Governed Personally Responsible Decision-Making in the Context of Artificial Reproductive Technology, 39 Capital U. L. Rev. 413 (2011).

To learn more about the child’s perspective see What’s My Place in this World? 35 Cap. U. L. Rev 563 (2007).