Sometimes, life affords a unique mirror on
the law. I recently watched “Bling Empire”- the Netflix reality show that
documents the rich and fabulous life of a group of Asian-American friends
living in the Los Angeles area. One of the storylines follows Dr. Gabriel Chui,
a plastic surgeon who is also a direct descendant of Chinese royalty, and his
glamorous wife Christine. The couple shares their previous fertility struggles,
which led to them conceiving their son “Baby G” through In Vitro Fertilization
(IVF). As “Baby G” turns one, Dr. Chui desperately wants his son to have a
sibling, specifically a sister. However, Christine is positive she does not
want to have any more kids. The couple takes “Baby G” to visit his “sisters” –
two female embryos they refer to as “London and Margot” that are frozen
indefinitely in a cryo-bank. It got me thinking - does Dr. Chui technically
even need Christine to be on board with the idea? Can he just hire a surrogate
and use the embryo without her permission? What happens to the embryos if they
get a divorce?
As assisted reproductive technology
becomes increasingly popular, courts must answer these types of questions.
Courts have developed three different main approaches to handling the issue:
the contractual approach, contemporaneous mutual assent approach, and balancing
approach. The contractual approach, adopted in states like New York, presumes
that written agreements between the couple about the fate of the embryos when
the embryos are frozen are valid and binding. The contemporaneous mutual assent
approach, followed in states like Iowa, does not allow the embryos to be
removed from storage unless both parties come to a present agreement. The
balancing approach, adopted in states like Tennessee, “assesses and weighs the
balancing reproductive interests of each spouse.”
Although Virginia law is still
unsettled on the matter, the Circuit Court of Halifax County, Virginia followed
the “balancing approach” when it was faced with this issue in the 2017 case Patel
v Patel. After the couple froze several embryos, chemotherapy treatments
left the ex-wife infertile. Largely because the embryos were now her only way
to have another biological child, the court awarded the embryos to the ex-wife,
allowing her to determine their fate, despite the ex-husband’s adamant
protests. This approach seems to advance life, protection, and family
restoration for the embryos.
As couples are trying to start a
family, they often overlook the possibility of future marital strife and
disagreement. But situations like these are reminders of how important it is to
consider all these uncomfortable possibilities before deciding to freeze your
embryos. Couples trying to conceive through assisted reproduction should have
these difficult conversations beforehand so they can prevent these types of
situations and be on the same page when it comes to their growing families.
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