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March 14, 2016

Missouri Proposed Legislation Would Throw All Forms of Assisted Reproductive Technology Into Legal Chaos

By Kurt M. Hughes with thanks to Susan Stockham, Esq. of Sarasota, Florida

A bill now pending before the Missouri House Children and Families Committee, HB 2558, and a similar bill pending in the senate, would severely undermine the legal underpinnings of all gestational surrogacy contracts in the state, and throw all forms of assisted reproductive technology into complete and utter chaos.  The bill places “in vitro human embryos” into the same statutory framework with custody actions for children in the Missouri family court system.  It requires courts to consider the “best interests” of the embryo, and presumes that it is in the embryo’s best interests to be transferred to someone who will give the embryo the best chance to develop and grow.

First, the bill creates an additional “custody” action where it should be crafting a separate embryo disposition statute.  Today, most cryo-preserved embryos undergo a “flash freeze” on day 3, being less than 16 cells.  Embryos that were frozen several years ago would have been frozen no later than day 5.  In determining the legal status of these pre-implanted cryopreserved embryos, the Tennessee Supreme Court, in one of the first embryo disposition cases decisions in Davis v. Davis in 1992 concluded that pre-embryos are not, strictly speaking, either “persons” or “property,” but occupy an interim category that entitles them to special respect because of their potential to develop to birth.  No court or legislature has elevated embryos to a legal status of “person” or declared its sole best interest “to be transferred to develop to birth.”  Not only would this bill entirely ignore the fitness of the party seeking to bring the embryo to birth, but it would mandate a “one size fits all” disposition approach in every case, regardless of the particular circumstances.

Instead of mandating a single statutory analysis applicable to all embryo disputes, a better approach would be to require all patients to execute a written embryo disposition agreement.  Almost all IVF clinics require patients to sign an embryo disposition form prior to the creation of any embryos indicating their choice for disposing of any untransferred embryos. Among the dispositional choice include freezing the embryos for the patients’ subsequent use, donating them to another family to use, donating them to science, or degenerating them.  These dispositional directives also address what to do in the event of the death or divorce of the intended parents, including whether the remaining embryos can be used by just one of the parties to create more children.  The American Medical Association recommends this approach.  AMA Code of Medical Ethics Op. 2.131 (June 1994).  In almost all cases where a prior written disposition agreement exists, those agreements have been upheld and enforced by the courts.  Without written directives, courts wrestle with determining the parties’ intent at the time the embryos were created and balancing the needs of each of the intended parents.  There is a well-established body of case law from around the country with a variety of approaches to resolving these dispositional disputes.  Two opinions by the Illinois appellate courts in Szafranski I (2013 Ill. App.) and Szafranski v. Dunston (2015 Ill. App.) provide an excellent overview of embryo disposition cases. An example of an embryo disposition statue from Florida accompanies this letter. 

Second, this bill would completely negate any agreements governing parentage in sperm and egg donation contracts, gestational surrogacy agreements, and embryo disposition agreements.  There is no more private decision by individuals and couples than the power to decide when and how they will become parents.  By creating a custody cause of action over embryos, instead of a carefully crafted embryo disposition statute, this bill will disempower Missouri citizens from planning their own fertility treatments.   How far back will this bill apply:  to all existing frozen embryos in Missouri or only those frozen from enactment of the bill forward?  How many families and clinics would be forced into these disputes that they believed were resolved by written disposition agreements?  What government public policy or interest is promoted by establishing a policy that 16 cell embryos have a “best interest” to be transferred and developed?  What studies support this conclusion? How many years will embryos be frozen in legal limbo, and who will be required to pay for their indefinite storage?  What if the best interest of the embryo is not to be transferred and developed in a particular case?  What if the winning donor is not a fit parent, not capable of supporting a child, or dangerous to a child? 

This bill takes very personal and constitutionally protected family building decisions out of the hands of the intended parents, prohibits them from making other appropriate dispositional choices for their embryos, limits their choices regarding their future family building options, voids all prior agreements, and permits one gamete donor to force the other to procreate over his or her objection.  It also restricts the courts’ ability to balance the rights and interests of the parties by mandating that the courts’ decisions be presumptively based on who will transfer and develop the embryos to birth.

Finally, this bill would open the floodgates to litigation in Missouri courts to custody actions by sperm and egg donors, as well as gestational surrogates carrying a child not genetically related to her (even though the statute excludes from the definition of “in vitro human embryo” human embryos located within a female womb).  It would completely deprive intended parents who have created embryos to have a family using either donated egg or sperm of any legal security over their embryos.   Indeed, by allowing “any other party involved in the negotiations for the creation of the in vitro human embryo at issue” to have standing to petition the courts to intervene, the statute invites doctors, lawyers, IVF clinics, donor and surrogacy matching programs, social workers, friends and relatives to intervene in a custody dispute that should involve only the intended parents.  The family courts are already burdened with litigation involving the best interests of children in custody disputes – children who have already been born.  To now foist upon these courts the added responsibility of litigating the custody of sixteen-cell embryos would be fiscally irresponsible and would deprive existing families of already scarce resources.

This bill would be an absolute catastrophe for infertile couples in Missouri, or anyone using a gestational carrier or gamete donor from Missouri. RESOLVE (the National Infertility Association representing 7.3 million Americans, including more than 128,000 Missouri residents), ASRM (the American Society for Reproductive Medicine) and AAARTA (the American Academy of Assisted Reproductive Technology Attorneys) have all gone on record strongly opposing this bill.

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Kurt M. Hughes

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