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With the increasingly pervasive role played by technology in assisting reproduction, imperative questions are raised in terms of right to life, parenthood, and family. Highly contested cases have been fought before national and international courts over the past twenty years. The root cause of all such cases is the fact that human life is no longer only created by conventional, natural means. With assisted reproductive technology (ART), what once were questions of fate have turned into matters of choice intertwined with rights.

Evincing the complexity of this phenomenon, the latest data suggests that there are more than 620,000 cryo-preserved embryos in the United States alone. The vast majority of these cryo-preserved embryos are still being considered for use in the family-building efforts of the couples who created them. Questions related to the use of these embryos particularly arise following decisions by genetic parents to separate as a couple, divorce, or upon deciding the number of children.

Focusing on In Vitro Fertilization (IVF), this Article explores the complicated rights of parenthood and family life in IVF, and analyzes the varying approaches developed by national and international courts in addressing difficult rights-related questions.

Assisted Reproductive Technology: Definitions and the Legal Framework

ART has grown in both means and effectiveness over the years. The reproductive process can now be severed, allowing interventions or substitutions at different stages of the reproductive process. The key ART for this analysis, IVF, is the process of fertilization by extracting eggs and sperm, and manually combining them in a laboratory dish. The embryo(s) is then either transferred to the uterus or preserved. Cryo-preservation aids the embryo to survive for years. The possible number of years for preservation is generally stipulated by the law. The success rate of IVF, though it varies from case to case, is said to be between twenty to fifty percent, and there is no significant difference in success rates between fresh and frozen embryos. Often the process is carried out by parties subject to a contractual agreement, which governs the process and its results.

All key international and regional human rights instruments enshrine a right to privacy, family life, and the non-interference of the state to decisions made within the private sphere. At the same time, they uphold a right to life. The Universal Declaration of Human Rights (UDHR) (1948) in Articles 12 and 16 upholds the same, while the International Covenant on Civil and Political Rights (ICCPR) expresses similar rights in Article 17. Regional human rights bodies such as the Inter-American system and the European system are more promising and strongly advocate for these rights. For instance, the American Convention of Human Rights (1969) upholds a guarantee of non-suspension of the right to family life (Article 17) by the State. The instruments further grant equal rights to men and women to make decisions pertaining to family life.

International law, however, allows leeway for national laws governing these rights. There is minimum guidance set by international law in resolving issues involving embryo preservation. In the United States, there are no federal regulations governing the disposition of frozen embryos created through assistive technology. However, some countries, such as the United Kingdom, have domestic statutes. Generally, though the IVF process is carried out subject to a contractual agreement, this is not always upheld by the courts in resolving disputes and may not necessarily address particular future issues that can arise.

Compelling Questions Raised by the Discourse Surrounding Rights

As described above, the ART process adds multiple new dynamics to the natural reproductive process. In light of this fact, there are two key substantive rights-related challenges that IVF poses for national and international courts: (1) balancing the competing constitutional rights to procreate and not procreate, and (2) tracing the place of the embryo in the debate of personhood. As the analysis of IVF develops, it is hard to overlook its stark resemblance to the abortion debate and the views expressed pertaining to the issues of rights and life.

  • Balancing Competing Rights

Harvard law professor and renowned academic in the area Glenn Cohen raises the difficulty of balancing one person’s constitutional right to procreate with another’s countervailing constitutional right not to procreate. Designating his point in the equation between the genetic parent and the gestational parent, he opines that the rights of both parties are equally strong in the debate. Drawing an analogy between this issue and the abortion debate, specifically Roe v. Wade, he questions “if women have the right to not be forced to be a gestational parent, do men – or women – have the right not to be forced to be a genetic parent?”

United States courts have addressed these matters through three approaches: the balancing interests approach, the contractual approach, and the contemporaneous mutual consent approach. The balancing interests approach resolves disputes by “considering the position of parties, significance of their interests and the relative burden imposed by differing resolutions.” In Colorado in the case of In re the Marriage of Drake F. Rooks and Mandy Rook, the Academy of Adoption and Assisted Reproductive Attorneys said that courts must take a “balancing of interests” approach in such disputes, but should “give special weight to the partner who does not want to have genetic offspring.” On the other hand, the contractual approach resorts to giving effect to the agreement devised by the parties at the point of pursing IVF, given that the contract stands valid and enforceable. Finally, the mutual consent approach resonates with the second approach, favoring the consent expressed in a valid contract and any modifications carried out with contemporaneous mutual consent of the other party.

Lisa Ikemoto, a bioethics professor at the University of California, has said that one party’s right not to procreate has usually been considered to trump the other’s right to procreate. Aptly summarizing the debate, Professor Cohen highlights that although the first child born from a cryo-preserved embryo was in 1984, United States courts “have not been addressing this issue head-on.”

Similarly, other countries are also grappling with various legal issues arising as a result of burgeoning IVF practices. In China, parents of a deceased couple were recently granted the right over fertilized eggs of the couple. Having gone through a “legal minefield” until their grandchild was born through a surrogate mother, the four grandparents are now preparing to legally establish their relations to the child through DNA testing.

International courts adjudicate similar cases with a relatively loose approach. This is due to the tedious exercise of having to balance competing rights enshrined in international conventions with applicable national law. The European Court of Human Rights often predicates on the parties’ consent, while giving substantial weight to the “margin of appreciation” to give effect to relevant domestic legislative provisions. This is evident in judgments such as Evans v. United Kingdom (2005) where the court rejected the claim of violation of the right to privacy and family life based on withdrawal of consent by one party. Withdrawal of consent was the cause for termination agreed to by the parties at the time of making the contract, and national laws reflected respecting the decision of the parties. On the other hand, the Inter-American Court of Human Rights in Artavia Murillo et al. v. Costa Rica depicts an instance where the right to family life (Article 17) and the right to privacy (Article 11) superseded concerns of the right to life. The court upheld that the non-availability of IVF itself could amount to a violation of the right to family life and privacy, after Costa Rica had banned IVF on the basis that it violated the right to life.

On a different note, some scholars opine that more than two parties can be involved in these disputes and that personal intention is a more significant element. Since the IVF process can be severed it becomes depersonalized and multiple persons may be involved in one or a few stages of the reproductive process and then later withdraw from it after their role is fulfilled.

  • Embryos & Personhood

Is the human embryo a person? The answer to this question has significant implications for human rights. Answers to this question could either lift or strengthen the guarantee of non-interference by the state to a person’s privacy and family life, depending on the state’s interest in protecting life.

Fertilization is a process, therefore, personhood does not attach the moment an embryo starts to develop. The scientific view is that the embryo is not a person during its ‘pre-embryo’ stage of fourteen days. In In re the Marriage of Drake F. Rooks and Mandy Rooks, the counsel for Drake Rooks asserted that the constitutional right to be a parent may not have any bearing upon matters passing the point of conception. Arguing that the case is no longer about separate human cells but a formed fetus, the counsel stated that the cases of frozen embryos are an “unknown territory.” This sentiment reflects strong parallels to the abortion debate which ultimately boils down to a matter of individual choice versus a matter of life, as decided in Roe v. Wade and more recently in Whole Woman’s Health v. Hellerstedt (2016).

The distinction between embryos and personhood is unsettled at a global level, and international courts prefer to give effect to the laws of the jurisdiction from which a case is emanating. Rulings of the European Court of Human Rights best exemplify this position.

Conclusion

In resolving disputes in the area, different approaches are suggested by scholars. Some propose proceeding with the contractual approach while others propose a property approach as an alternative. In the case of Mimi Lee and James Cohen, from California, it was expressed that “the policy best suited to ensuring that these disputes are resolved in a cleareyed manner — unswayed by the turmoil, emotion and accusations that attend to contested proceedings in family court — is to give effect to the intentions of the parties at the time of the decision at issue.” Courts in the United States and internationally have frequently precipitated on this contractual approach.

Many of the questions brought in the ART and procreation debate resonate with concerns and questions that were raised during the abortion debate. Such similarities create the possibility of further pushing the issue into a grey area in which law and policy makers hesitate to tread. The dynamics of this matter are so increasingly complex that leaving it unaddressed, or to be resolved only on a case by case basis, might lead to an exacerbated human rights battle in the near future.