It's not just celebrities who are confronting these issues.
May 10, 2015 3:10 PM Subscribe
Does Sofia Vergara own her embryos? Are embryos property -- like say, sneakers, flowers, fish or toothpaste? Who really should own them? Will the children who are born from them have rights to know or have relationships with their biological parents?
The Huffington Post take on it: The Troubling Subtext Of Sofia Vergara's Ex-Fiance's 'Embryos Have A Right To Live' Op-Ed
The Huffington Post take on it: The Troubling Subtext Of Sofia Vergara's Ex-Fiance's 'Embryos Have A Right To Live' Op-Ed
This is such a fascinating case (unless you're Sofia Vergara for whom it must be terrible) and is an intersection of so many competing legal interests! I am very interested in the result. I do think the HuffPost piece is kind of facile (but I repeat myself) and rejects one or two arguments that cannot be waved away so easily.
They are correct that this case has nothing to do with an embryos "right to live" which is a stupid argument that will go nowhere. But that doesn't mean that all of Loeb's legal positions can be as easily dismissed.
posted by Justinian at 3:30 PM on May 10, 2015 [1 favorite]
They are correct that this case has nothing to do with an embryos "right to live" which is a stupid argument that will go nowhere. But that doesn't mean that all of Loeb's legal positions can be as easily dismissed.
posted by Justinian at 3:30 PM on May 10, 2015 [1 favorite]
FWIW, my guess is that they don't address any of the more interesting aspects of the argument and instead simply find that initial contract requiring both parties' consent holds even after they split up without commenting on the rest of it.
posted by Justinian at 3:35 PM on May 10, 2015 [5 favorites]
posted by Justinian at 3:35 PM on May 10, 2015 [5 favorites]
I'm not sure if I even consider teenagers "people," I certainly can't seeing extending any rights to something even a reasonable person couldn't recognize as a person.
posted by GoblinHoney at 3:44 PM on May 10, 2015 [7 favorites]
posted by GoblinHoney at 3:44 PM on May 10, 2015 [7 favorites]
I don't understand how the contact should be voidable just because they broke up. Surely it's still theoretically possible for them to both agree to bring one or more embryos to term, she's just apparently rather unlikely to.
posted by kafziel at 3:46 PM on May 10, 2015 [8 favorites]
posted by kafziel at 3:46 PM on May 10, 2015 [8 favorites]
Also, y'know ... if you want to be a dad that badly, there's plenty of kids out there that need adoption.
posted by kafziel at 3:49 PM on May 10, 2015 [17 favorites]
posted by kafziel at 3:49 PM on May 10, 2015 [17 favorites]
Seems pretty straightforward to me. I would venture to say that the clause in the contract requiring both parties' consent was written with break-ups in mind.
Whether it was bluster or not I don't know, but I heard Vergara on Howard Stern the other day and she seems pretty unconcerned, and confident that the contract will hold up.
posted by amro at 3:50 PM on May 10, 2015 [3 favorites]
Whether it was bluster or not I don't know, but I heard Vergara on Howard Stern the other day and she seems pretty unconcerned, and confident that the contract will hold up.
posted by amro at 3:50 PM on May 10, 2015 [3 favorites]
I saw this Law & Order episode. The ex-wife did it, but no one feels sorry for the new wife either.
posted by sbutler at 4:12 PM on May 10, 2015 [2 favorites]
posted by sbutler at 4:12 PM on May 10, 2015 [2 favorites]
Did I miss the part where a major national news outlet just handed over the keys to their platform to an absolute tool so he could harass his ex about a private legal matter?
posted by bitter-girl.com at 4:22 PM on May 10, 2015 [75 favorites]
posted by bitter-girl.com at 4:22 PM on May 10, 2015 [75 favorites]
It seems like the only reason he was allowed to create the embryos in the first place would be because they don't have legal weight or a right to life. Imagine if someone tried to freeze infants like they freeze embryos; without 100% assurance that they will not be harmed and without any kind of ironclad agreement to unfreeze them and raise them someday. Often creating more than they ever even intend to raise? It would never, ever be allowed.
posted by Mitrovarr at 4:24 PM on May 10, 2015 [13 favorites]
posted by Mitrovarr at 4:24 PM on May 10, 2015 [13 favorites]
Does she own her and her ex's embryos would be a far less douche-tastic title, but hey if they agreed ahead of time to two party consent than dude should man up and deal with the choice he made, seems cut and dry to me.
posted by trackofalljades at 4:26 PM on May 10, 2015
posted by trackofalljades at 4:26 PM on May 10, 2015
Wow, yet another way for a woman's consent around child-having to be dismissed.
posted by Dashy at 4:26 PM on May 10, 2015 [20 favorites]
posted by Dashy at 4:26 PM on May 10, 2015 [20 favorites]
He admits that he and Vergara "signed a form stating that any embryos created through the process could be brought to term only with both parties’ consent," which he is now requesting be voided because it did not specify what would happen if the couple split.
If the court ruling is not an "Uhh, DUHHHH!" and a slap in the mush, I will be disappointed. If everyone who should be working at the New York Times wants to take the same week off, just don't publish a paper. Does this guy need a flowchart to figure out the flaw in his Defense of The Children Argument? If my parents split up before they had me . . . oh God, does this guy break into masturbators' homes? Asking for a friend. And me.
Obvious lesson is obvious: do not go out with a guy who looks like Luis Suarez.
posted by yerfatma at 4:35 PM on May 10, 2015 [4 favorites]
If the court ruling is not an "Uhh, DUHHHH!" and a slap in the mush, I will be disappointed. If everyone who should be working at the New York Times wants to take the same week off, just don't publish a paper. Does this guy need a flowchart to figure out the flaw in his Defense of The Children Argument? If my parents split up before they had me . . . oh God, does this guy break into masturbators' homes? Asking for a friend. And me.
Obvious lesson is obvious: do not go out with a guy who looks like Luis Suarez.
posted by yerfatma at 4:35 PM on May 10, 2015 [4 favorites]
You guys know there are legal precedents for setting aside agreements like this, right? Because people here are a lot more sure about how this should go than seems at all apparent to me. For example the courts found that a woman in Chicago had the right to bring an embryo to term even though her ex didn't want it to happen and they had exactly the same sort of agreement Vergara has signed.
Clearly the courts should just Ask Metafilter though.
posted by Justinian at 4:43 PM on May 10, 2015 [7 favorites]
Clearly the courts should just Ask Metafilter though.
posted by Justinian at 4:43 PM on May 10, 2015 [7 favorites]
Obvious lesson is obvious: do not go out with a guy who looks like Luis Suarez.
Sofia Balbi disagrees.
posted by librosegretti at 4:45 PM on May 10, 2015 [2 favorites]
Sofia Balbi disagrees.
posted by librosegretti at 4:45 PM on May 10, 2015 [2 favorites]
(starting at about the 4 minute mark): Why now? Why this sperm? (scene from Legally Blonde)
posted by Michele in California at 4:45 PM on May 10, 2015
posted by Michele in California at 4:45 PM on May 10, 2015
> You guys know there are legal precedents for setting aside agreements like this, right?
Nope! But if you wanted to actually point us to them, I for one would love to read them - do you know any more details about this woman in Chicago, for instance?
posted by the agents of KAOS at 4:46 PM on May 10, 2015 [3 favorites]
Nope! But if you wanted to actually point us to them, I for one would love to read them - do you know any more details about this woman in Chicago, for instance?
posted by the agents of KAOS at 4:46 PM on May 10, 2015 [3 favorites]
Also, was that Chicago woman a smoking hot super multimillionaire? Because I can see one possible outcome for someone capable of this much douchecanoery, and it's suing for support somewhere down the line. Otherwise why not just go knock ANYONE ELSE ON EARTH up?
posted by bitter-girl.com at 4:49 PM on May 10, 2015 [8 favorites]
posted by bitter-girl.com at 4:49 PM on May 10, 2015 [8 favorites]
Nope! But if you wanted to actually point us to them, I for one would love to read them - do you know any more details about this woman in Chicago, for instance?
The facts are dramatically different - for one, they signed a clinic form, rather than drafting and agreeing on a contract - and there's significant parol evidence to distinguish the situation.
posted by kafziel at 4:50 PM on May 10, 2015 [7 favorites]
The facts are dramatically different - for one, they signed a clinic form, rather than drafting and agreeing on a contract - and there's significant parol evidence to distinguish the situation.
posted by kafziel at 4:50 PM on May 10, 2015 [7 favorites]
Yes. Chemotherapy had rendered her infertile so the frozen embryos were her only change at biological children of her own. However, I don't see that should be the determining factor since "I really really really want biological children" isn't necessary a great legal argument.
Szafranski v. Dunston, 2013 IL App (1st) 122975
That's a PDF.
posted by Justinian at 4:50 PM on May 10, 2015
Szafranski v. Dunston, 2013 IL App (1st) 122975
That's a PDF.
posted by Justinian at 4:50 PM on May 10, 2015
The facts are different; it is a matter for the court to determine if they are dramatically different. You can claim they are but I'm not so sure it's different enough to be dispositive.
posted by Justinian at 4:51 PM on May 10, 2015 [2 favorites]
posted by Justinian at 4:51 PM on May 10, 2015 [2 favorites]
In that case, the mother presented evidence that the sperm donor consented to the implantation at the time, and now later wants to take it back. In this case, the mother appears to have never consented to the implantation. You don't think that's a distinguishable difference?
posted by kafziel at 4:55 PM on May 10, 2015 [2 favorites]
posted by kafziel at 4:55 PM on May 10, 2015 [2 favorites]
I'm not arguing that I think Vergara should definitely lose, I'm saying that people above who say this is a slam dunk case don't seem to know the facts or history.
But as to that point, no, I don't think that what one party said to a couple friends should be more important than a signed agreement. Changing your mind is perfectly legal.
posted by Justinian at 4:57 PM on May 10, 2015
But as to that point, no, I don't think that what one party said to a couple friends should be more important than a signed agreement. Changing your mind is perfectly legal.
posted by Justinian at 4:57 PM on May 10, 2015
Did I miss the part where a major national news outlet just handed over the keys to their platform to an absolute tool so he could harass his ex about a private legal matter?
Yea, how is this not essentially a suit and tie version of Gjoni's bullshit actions at the start, middle, and current standing of gamergate?
This entire thing seems like a ruse to use the courts and media to harass his ex. He doesn't even care about having the kid so much as he just wants to get what he wants over her wishes to flex his power.
Gross gross gross.
posted by emptythought at 4:59 PM on May 10, 2015 [15 favorites]
Yea, how is this not essentially a suit and tie version of Gjoni's bullshit actions at the start, middle, and current standing of gamergate?
This entire thing seems like a ruse to use the courts and media to harass his ex. He doesn't even care about having the kid so much as he just wants to get what he wants over her wishes to flex his power.
Gross gross gross.
posted by emptythought at 4:59 PM on May 10, 2015 [15 favorites]
Only bitter-girl.com mentions what I think is the key issue: children who can claim maternity to Ms. Vergara are sitting on a powder-keg of money. And who better to save them from such a fate than their loving father?
posted by spacewrench at 5:12 PM on May 10, 2015 [8 favorites]
posted by spacewrench at 5:12 PM on May 10, 2015 [8 favorites]
He admits that he and Vergara "signed a form stating that any embryos created through the process could be brought to term only with both parties' consent," which he is now requesting be voided because it did not specify what would happen if the couple split.
[shrieking intensifies]
It looks like you're trying to change contract law. Would you like help?
For real though: Parol evidence, how does it work? If dude has evidence that the intent of the original signed agreement was that he would get 'custody' of the embryos in the event of a breakup, or proof that an informal agreement was made to the same effect, he's had all of the time in the world to present evidence to support his case. If he doesn't have any, what part of "unless such a provision is bilaterally agreed to beforehand or you're making a waiver, there is no circumstance in which an individual is allowed to unilaterally void or change the terms of an executed contract" is he refusing to understand?
UCC § 2-201(3)(a), 202, 204(3), 208(2), and 209 are everywhere in this bitch, ref. § 2-105 for the relevant definition of "goods." (IAADCP, IANYDCP*)
* I am a drunk contracting professional, I am not your drunk contracting professional
posted by divined by radio at 5:26 PM on May 10, 2015 [20 favorites]
[shrieking intensifies]
It looks like you're trying to change contract law. Would you like help?
For real though: Parol evidence, how does it work? If dude has evidence that the intent of the original signed agreement was that he would get 'custody' of the embryos in the event of a breakup, or proof that an informal agreement was made to the same effect, he's had all of the time in the world to present evidence to support his case. If he doesn't have any, what part of "unless such a provision is bilaterally agreed to beforehand or you're making a waiver, there is no circumstance in which an individual is allowed to unilaterally void or change the terms of an executed contract" is he refusing to understand?
UCC § 2-201(3)(a), 202, 204(3), 208(2), and 209 are everywhere in this bitch, ref. § 2-105 for the relevant definition of "goods." (IAADCP, IANYDCP*)
* I am a drunk contracting professional, I am not your drunk contracting professional
posted by divined by radio at 5:26 PM on May 10, 2015 [20 favorites]
I think there's actually a lot of really interesting legal stuff here. Our processes haven't evolved for the current level of technology. For example - we talk about 'right to choice' for women and women only - but it's largely because until very recently, babies needed to be incubated inside women, and there weren't really good procedures for removing an embryo from one person and implanting it inside another. (I think there still aren't for the latter). But those rights were framed because it's unethical to make one person incubate another person inside her body without consent - not because women, alone, get to make choices about reproduction.
What do you really do when there is an embryo created, one parent wants it to grow to term, and one parent does not? And more complicatedly, the embryo is not living in anyone's body. Legally, it should be no more skin off her nose if he wants to implant the embryos in a surrogate against her will than it should if a woman wants to bring a baby to term against her ex-boyfriends' will.
In the Vergara case specifically, I'd say there actually is another wrinkle - in that she did give her consent to implantation, but the surrogate had a miscarriage. Does the consent to implantation apply for all embryos, or only one at a time?
And as Jezebel notes, it's not clear cut. What about a woman who has created embryos and since passed childbearing age, where this is the only option for her to have children?
posted by corb at 6:44 PM on May 10, 2015 [3 favorites]
What do you really do when there is an embryo created, one parent wants it to grow to term, and one parent does not? And more complicatedly, the embryo is not living in anyone's body. Legally, it should be no more skin off her nose if he wants to implant the embryos in a surrogate against her will than it should if a woman wants to bring a baby to term against her ex-boyfriends' will.
In the Vergara case specifically, I'd say there actually is another wrinkle - in that she did give her consent to implantation, but the surrogate had a miscarriage. Does the consent to implantation apply for all embryos, or only one at a time?
And as Jezebel notes, it's not clear cut. What about a woman who has created embryos and since passed childbearing age, where this is the only option for her to have children?
posted by corb at 6:44 PM on May 10, 2015 [3 favorites]
Mitrovarr: "Imagine if someone tried to freeze infants like they freeze embryos; without 100% assurance that they will not be harmed and without any kind of ironclad agreement to unfreeze them and raise them someday. Often creating more than they ever even intend to raise? It would never, ever be allowed."
An awful lot of what we might call "fertility law" relies precisely on preventing that connection from being made -- there's also a lot of buying and selling of gametes/embryos/wombs that comes uncomfortably close to either selling organs or selling children or selling sex. (Hard to phrase so it doesn't sound negative, but a lot of reproductive technology seems to fall afoul of the plain language of laws forbidding the selling of human organs or of people or of sex. I'm not sure this means selling embryos is bad ... might mean that kidney distribution needs improvement. Or, it's okay to rent a womb to incubate a baby, but you can't rent a vagina for sexual pleasure?)
Justinian: "I'm not arguing that I think Vergara should definitely lose, I'm saying that people above who say this is a slam dunk case don't seem to know the facts or history."
Totally agree; I think Vergara should/will win (even if she were in Illinois where our "fertility law" is a hot fucking mess), but it's not as straightforward a case as people think, and the area of law in general is in a state of extreme flux. Things that people have been told they'll be criminally prosecuted for in one state (as trafficking in humans) are explicitly permitted in other, and people cross state borders all the time to take advantage of the chaotic legal regime in this area.
I am secretly addicted to the family law reporters for Illinois where they write up all of these messy, messy cases on new reproductive technology. They're like Victorian novels, with gametes. I don't talk about it a lot because what for me is a totally fascinating theoretical legal issue around new technology, property, and personhood is, for the people involved, an intensely painful and traumatic life-defining experience of parenthood (or non-parenthood), so I don't want to walk around with all available feet in my mouth. But it is really, really, really interesting ... and really complicated.
posted by Eyebrows McGee at 7:04 PM on May 10, 2015 [7 favorites]
An awful lot of what we might call "fertility law" relies precisely on preventing that connection from being made -- there's also a lot of buying and selling of gametes/embryos/wombs that comes uncomfortably close to either selling organs or selling children or selling sex. (Hard to phrase so it doesn't sound negative, but a lot of reproductive technology seems to fall afoul of the plain language of laws forbidding the selling of human organs or of people or of sex. I'm not sure this means selling embryos is bad ... might mean that kidney distribution needs improvement. Or, it's okay to rent a womb to incubate a baby, but you can't rent a vagina for sexual pleasure?)
Justinian: "I'm not arguing that I think Vergara should definitely lose, I'm saying that people above who say this is a slam dunk case don't seem to know the facts or history."
Totally agree; I think Vergara should/will win (even if she were in Illinois where our "fertility law" is a hot fucking mess), but it's not as straightforward a case as people think, and the area of law in general is in a state of extreme flux. Things that people have been told they'll be criminally prosecuted for in one state (as trafficking in humans) are explicitly permitted in other, and people cross state borders all the time to take advantage of the chaotic legal regime in this area.
I am secretly addicted to the family law reporters for Illinois where they write up all of these messy, messy cases on new reproductive technology. They're like Victorian novels, with gametes. I don't talk about it a lot because what for me is a totally fascinating theoretical legal issue around new technology, property, and personhood is, for the people involved, an intensely painful and traumatic life-defining experience of parenthood (or non-parenthood), so I don't want to walk around with all available feet in my mouth. But it is really, really, really interesting ... and really complicated.
posted by Eyebrows McGee at 7:04 PM on May 10, 2015 [7 favorites]
PTRD should be a thing. People lose it over a piece of furniture.
posted by Mr. Yuck at 7:10 PM on May 10, 2015 [1 favorite]
posted by Mr. Yuck at 7:10 PM on May 10, 2015 [1 favorite]
I think there's actually a lot of really interesting legal stuff here. Our processes haven't evolved for the current level of technology. For example - we talk about 'right to choice' for women and women only - but it's largely because until very recently, babies needed to be incubated inside women, and there weren't really good procedures for removing an embryo from one person and implanting it inside another. (I think there still aren't for the latter). But those rights were framed because it's unethical to make one person incubate another person inside her body without consent - not because women, alone, get to make choices about reproduction.
What do you really do when there is an embryo created, one parent wants it to grow to term, and one parent does not? And more complicatedly, the embryo is not living in anyone's body. Legally, it should be no more skin off her nose if he wants to implant the embryos in a surrogate against her will than it should if a woman wants to bring a baby to term against her ex-boyfriends' will.
Aha, but there's this fact; whoever grows the embryo to term (original donor or surrogate) is the person doing 99.99% of the work, with all the burden of physical risk. At no point does the sperm donor contribute anything close to a comparable amount of effort and risk. Babies are actually built from the tissues of the women that gestate them; the father contributes half a blueprint, and takes no physical risks of any kind to do so. In a donor scenario, the original mother contributes the other half of the blueprint. But the surrogate gestating mother still does all the real work, and takes all the real risk, of pregnancy. And yet, in your scenario, she is completely erased from the process, as if she were a fake womb in a lab, instead of a person.
Which is kind of why I am squeamish about surrogacy in general; it's one of those contracts that has so much extreme inequality built in (because a pregnancy gone wrong can actually kill you or damage you badly) that I'm not sure it's something that should happen at all. As EMcG points out, it's awfully close to trafficking in human bodies. The women who are surrogates are often in bad or disadvantaged economic situations, compared to the people who can afford thousands of dollars to pay them to do so.
What makes us get over that is the picture of grieving potential parents who just want a baby so badly. It's very compelling. And for those making it happen, profitable. But the ethical questions involved are still there.
posted by emjaybee at 7:13 PM on May 10, 2015 [9 favorites]
What do you really do when there is an embryo created, one parent wants it to grow to term, and one parent does not? And more complicatedly, the embryo is not living in anyone's body. Legally, it should be no more skin off her nose if he wants to implant the embryos in a surrogate against her will than it should if a woman wants to bring a baby to term against her ex-boyfriends' will.
Aha, but there's this fact; whoever grows the embryo to term (original donor or surrogate) is the person doing 99.99% of the work, with all the burden of physical risk. At no point does the sperm donor contribute anything close to a comparable amount of effort and risk. Babies are actually built from the tissues of the women that gestate them; the father contributes half a blueprint, and takes no physical risks of any kind to do so. In a donor scenario, the original mother contributes the other half of the blueprint. But the surrogate gestating mother still does all the real work, and takes all the real risk, of pregnancy. And yet, in your scenario, she is completely erased from the process, as if she were a fake womb in a lab, instead of a person.
Which is kind of why I am squeamish about surrogacy in general; it's one of those contracts that has so much extreme inequality built in (because a pregnancy gone wrong can actually kill you or damage you badly) that I'm not sure it's something that should happen at all. As EMcG points out, it's awfully close to trafficking in human bodies. The women who are surrogates are often in bad or disadvantaged economic situations, compared to the people who can afford thousands of dollars to pay them to do so.
What makes us get over that is the picture of grieving potential parents who just want a baby so badly. It's very compelling. And for those making it happen, profitable. But the ethical questions involved are still there.
posted by emjaybee at 7:13 PM on May 10, 2015 [9 favorites]
whoever grows the embryo to term (original donor or surrogate) is the person doing 99.99% of the work, with all the burden of physical risk
Yes, but that has little to do with which of the two donors is 'more' entitled to the baby. Though that is ANOTHER piece of fascinating law about this. What happens if a surrogate decides that she wants to keep the baby? What if she crosses state lines to a state that doesn't recognize surrogacy? Whose baby is it then?
posted by corb at 7:25 PM on May 10, 2015 [1 favorite]
Yes, but that has little to do with which of the two donors is 'more' entitled to the baby. Though that is ANOTHER piece of fascinating law about this. What happens if a surrogate decides that she wants to keep the baby? What if she crosses state lines to a state that doesn't recognize surrogacy? Whose baby is it then?
posted by corb at 7:25 PM on May 10, 2015 [1 favorite]
Hard to see how the issue here is anything other than money. The courts are no strangers to getting it wrong, though, so who knows what will happen. It has always seemed monstrous to me to force someone to be a parent who doesn't want to be, but the world is a pretty monstrous place most of the time.
posted by Steely-eyed Missile Man at 7:25 PM on May 10, 2015 [1 favorite]
posted by Steely-eyed Missile Man at 7:25 PM on May 10, 2015 [1 favorite]
wrote that he always wanted to have children
Dude, you still can have children. Just not with your ex-fiancee, because you broke up and she no longer wants to have children with you. Go have children with someone else. Sheesh.
posted by desuetude at 8:00 PM on May 10, 2015 [13 favorites]
Dude, you still can have children. Just not with your ex-fiancee, because you broke up and she no longer wants to have children with you. Go have children with someone else. Sheesh.
posted by desuetude at 8:00 PM on May 10, 2015 [13 favorites]
Yes, but that has little to do with which of the two donors is 'more' entitled to the baby.
Yes, but why does it? That was my question. A lot of my views on women's rights in reproduction have been shaped by the realization that the justice of letting a woman decide what happens in a pregnancy is supported by the fact that she is the one taking the risks and providing the body tissue for it to continue. But in a surrogacy situation, the woman who provides the eggs is in a similar position to the man who provides the sperm, except that extracting eggs involves more pain and effort than collecting sperm. But neither of those compares to the risk of actual gestation and birth.
From a social justice viewpoint, it looks like we have allowed some women to move into the role men historically played, with fetus/child as property they have a claim on, at the expense of other women who now do the gestating, although at least we pay them instead of just forcing them to bear children.
But if we sought to base reproductive law around the health and safety of those doing the gestating (or potential gestating) rather than around the ownership/rental/sale of cells/fetuses/human bodies, it might be better all around.
posted by emjaybee at 8:10 PM on May 10, 2015
Yes, but why does it? That was my question. A lot of my views on women's rights in reproduction have been shaped by the realization that the justice of letting a woman decide what happens in a pregnancy is supported by the fact that she is the one taking the risks and providing the body tissue for it to continue. But in a surrogacy situation, the woman who provides the eggs is in a similar position to the man who provides the sperm, except that extracting eggs involves more pain and effort than collecting sperm. But neither of those compares to the risk of actual gestation and birth.
From a social justice viewpoint, it looks like we have allowed some women to move into the role men historically played, with fetus/child as property they have a claim on, at the expense of other women who now do the gestating, although at least we pay them instead of just forcing them to bear children.
But if we sought to base reproductive law around the health and safety of those doing the gestating (or potential gestating) rather than around the ownership/rental/sale of cells/fetuses/human bodies, it might be better all around.
posted by emjaybee at 8:10 PM on May 10, 2015
What happens if a surrogate decides that she wants to keep the baby? What if she crosses state lines to a state that doesn't recognize surrogacy? Whose baby is it then?
All parties enter into a legal morass. I'll let the actual legal experts come up with better cites but I believe the Baby M case settled that the surrogate mother had the greater rights. Subsequently this led to those wishing surrogates to go abroad, most famously India. A twist on this was another situation in which the surrogate declined to abort after fetal anomalies were detected but couldn't care for the child herself and wanted to pursue adoption to another family but had no legal authority to consent to the child’s adoption. And conversely there's here's the current/recent Sherri Shepherd case where the surrogate was being sued for child support prior to the final legal resolution.
posted by beaning at 8:11 PM on May 10, 2015 [1 favorite]
All parties enter into a legal morass. I'll let the actual legal experts come up with better cites but I believe the Baby M case settled that the surrogate mother had the greater rights. Subsequently this led to those wishing surrogates to go abroad, most famously India. A twist on this was another situation in which the surrogate declined to abort after fetal anomalies were detected but couldn't care for the child herself and wanted to pursue adoption to another family but had no legal authority to consent to the child’s adoption. And conversely there's here's the current/recent Sherri Shepherd case where the surrogate was being sued for child support prior to the final legal resolution.
posted by beaning at 8:11 PM on May 10, 2015 [1 favorite]
I am secretly addicted to the family law reporters for Illinois where they write up all of these messy, messy cases on new reproductive technology. They're like Victorian novels, with gametes.
I love you MetaFilter, you big bunch of weirdos. <3
posted by orrnyereg at 9:12 PM on May 10, 2015 [4 favorites]
I love you MetaFilter, you big bunch of weirdos. <3
posted by orrnyereg at 9:12 PM on May 10, 2015 [4 favorites]
I can't pretend to understand the intricacies of the law, and I can't predict how the case will play out. But I can say that Loeb is acting CREEPY AS ALL F-ING GET-OUT. Seriously, he can have kids with some other woman. He doesn't need Vergara's freaking embryos! Ignoring Vergara's objections and turning her embryos into babies against her will is just... ew! It's so, so, ew.
posted by Ursula Hitler at 9:22 PM on May 10, 2015 [3 favorites]
posted by Ursula Hitler at 9:22 PM on May 10, 2015 [3 favorites]
Man, that is the word's worst contract. Why wasn't it more specific?
I donated eggs to a couple I am friends with, and the contract our clinic made us sign had pages and pages devoted to the specific constellations of consent, non-consent, deaths, infertilities and break-ups that could happen, right down to complicated situations like, "if the donor couple becomes infertible and the recipient couple dies without specifying their wishes for the embryos, and the donor couple disagree about whether they want the embryos to be destroyed, donated or used by themselves..."
posted by lollusc at 9:27 PM on May 10, 2015 [1 favorite]
I donated eggs to a couple I am friends with, and the contract our clinic made us sign had pages and pages devoted to the specific constellations of consent, non-consent, deaths, infertilities and break-ups that could happen, right down to complicated situations like, "if the donor couple becomes infertible and the recipient couple dies without specifying their wishes for the embryos, and the donor couple disagree about whether they want the embryos to be destroyed, donated or used by themselves..."
posted by lollusc at 9:27 PM on May 10, 2015 [1 favorite]
He doesn't need Vergara's freaking embryos
They are equally his embryos. It's still true that he's being creepy and could have kids with another woman of course.
If she were a waitress or something he wouldn't even be trying this.
posted by Justinian at 9:41 PM on May 10, 2015 [2 favorites]
They are equally his embryos. It's still true that he's being creepy and could have kids with another woman of course.
If she were a waitress or something he wouldn't even be trying this.
posted by Justinian at 9:41 PM on May 10, 2015 [2 favorites]
If she were a waitress or something he wouldn't even be trying this.
Do you think it's totally a fame thing? My take was that he's ticked at her for not wanting to have his babies and he refuses to not have babies with Sofia Vergara. So, this is as close as he can get to hijacking her womb. That kind of creepy shit could happen to a waitress, too.
posted by Ursula Hitler at 9:48 PM on May 10, 2015 [1 favorite]
Do you think it's totally a fame thing? My take was that he's ticked at her for not wanting to have his babies and he refuses to not have babies with Sofia Vergara. So, this is as close as he can get to hijacking her womb. That kind of creepy shit could happen to a waitress, too.
posted by Ursula Hitler at 9:48 PM on May 10, 2015 [1 favorite]
I don't really know I guess. Maybe you're right. That seems insane but then so does the gamergate guy.
posted by Justinian at 10:30 PM on May 10, 2015
posted by Justinian at 10:30 PM on May 10, 2015
Do you think it's totally a fame thing? My take was that he's ticked at her for not wanting to have his babies and he refuses to not have babies with Sofia Vergara. So, this is as close as he can get to hijacking her womb. That kind of creepy shit could happen to a waitress, too.
Maybe less a fame thing and more a "She made $37 million last year" thing.
posted by kafziel at 10:53 PM on May 10, 2015 [1 favorite]
Maybe less a fame thing and more a "She made $37 million last year" thing.
posted by kafziel at 10:53 PM on May 10, 2015 [1 favorite]
It looks like you're trying to change contract law. Would you like help?
Thank you for so clearly articulating this. I'm speechless, myself... #ragequit
posted by mikelieman at 10:54 PM on May 10, 2015 [1 favorite]
Thank you for so clearly articulating this. I'm speechless, myself... #ragequit
posted by mikelieman at 10:54 PM on May 10, 2015 [1 favorite]
Fuck. I'm so pissed of I can't just walk away... Early Sunday, as a result of a discussion on Saturday about something else related... I ginned up a little flowchart that explained pro-choice in terms of straight up property rights. The first revision was a bit of a trainwreck, but I think the current revision is pretty good. Given the 'rewriting contract law' aspect of this story, I thought it relevant.
Start at the top, and if you get to the bottom, you're Pro-Choice.
posted by mikelieman at 10:58 PM on May 10, 2015 [1 favorite]
Start at the top, and if you get to the bottom, you're Pro-Choice.
posted by mikelieman at 10:58 PM on May 10, 2015 [1 favorite]
Pro-Choice usually refers to a woman's control over her own body. Since the embryos in question are frozen somewhere it isn't really a pro-life, pro-choice issue. The whole embryos-have-a-right-to-life thing is stupid and, as I said, going nowhere. But pro-choice arguments seem just as likely to be irrelevant to me since there is no question that Ms. Vergara would be forced to do anything (such as carry the embryos to term) with her body.
I don't really know why a court would overturn their agreement here. But at least some courts seem willing to overturn similar-though-not-exactly-the-same agreements and I don't understand why they did that, either, so I dunno. Courts do weird things sometimes.
posted by Justinian at 12:05 AM on May 11, 2015
I don't really know why a court would overturn their agreement here. But at least some courts seem willing to overturn similar-though-not-exactly-the-same agreements and I don't understand why they did that, either, so I dunno. Courts do weird things sometimes.
posted by Justinian at 12:05 AM on May 11, 2015
Pro-Choice usually refers to a woman's control over her own body.
That is of, course true, as is the fact that in this case, it's not directly relevant.
When I developed it, the intent that flowchart is to put Property Rights where they belong. Front and Center, so when this idea of Contracts that clearly establish property rights being ignored popped up here, I thought the example that once you keep your "Contract Law" glasses on, it's all quite clear.
So, the idea that Property Rights really cuts through the bullshit could be demonstrated in the most baggage ridden context and is all that matters in this context was the point.
posted by mikelieman at 4:22 AM on May 11, 2015
That is of, course true, as is the fact that in this case, it's not directly relevant.
When I developed it, the intent that flowchart is to put Property Rights where they belong. Front and Center, so when this idea of Contracts that clearly establish property rights being ignored popped up here, I thought the example that once you keep your "Contract Law" glasses on, it's all quite clear.
So, the idea that Property Rights really cuts through the bullshit could be demonstrated in the most baggage ridden context and is all that matters in this context was the point.
posted by mikelieman at 4:22 AM on May 11, 2015
This is a really interesting (and terrifying) area of law. I wrote a Note in law school about posthumous conception and estate planning issues. The law, at that time (many years ago), had very little to say about the status of embryos and gametes. There are just so many questions that would need to be answered if the court permitted him to use the embryos without her consent (and a lot of questions regardless of the decision). Are they legally her children? would she have parental rights and parental obligations? what if she dies - does he get to use the embryos then? does he need her estate's consent? would they be her children then and entitled to a portion of her estate? he'd obviously have to use a surrogate, what if he then abandoned the surrogate mother before birth? what if Vergara agrees to implant the embryo(s) in her own uterus but then has an abortion? does he have any recourse then? what if they attempt implantation but no embryos actually implant? is there a cause of action then? does this mean other contracts requiring dual consent to destroy embryos are also invalid? does it mean embryos can no longer be destroyed legally? is it just embryos, or does it apply to eggs and sperm separately as well? etc etc etc.
posted by melissasaurus at 4:35 AM on May 11, 2015 [2 favorites]
posted by melissasaurus at 4:35 AM on May 11, 2015 [2 favorites]
I don't see anything in the Szafranski case that would give much hope to Loeb here. It looks like most courts give effect to contracts between the parties that set forth the circumstances under which embryos will be released from storage - if this court follows that pattern, Loeb is probably out of luck. Other courts require both parties to agree to release an embryo at the time it is released, whether or not they previously signed a contract stating otherwise. If the court follows this pattern, Loeb loses. And the sole case in which a court found that an embryo should be released without the consent of one of the partners (Reber v. Reiss) involved the release of the embryos to a woman who could not become a biological parent without use of the embryos. There's no indication that Loeb won't be able to become a biological parent without these embryos, so I don't think Reiss is much help to him.
Loeb's best chance is probably getting an anti-choice judge who will jump at the chance to apply a "balancing test" that finds that the embryos have some made-up right to be implanted that overrides both the contract between the parties and Vergara's right not to be a parent. Given his explicit framing of this matter as motivated by his anti-choice views, I think that's what he's banking on.
posted by burden at 5:22 AM on May 11, 2015
Loeb's best chance is probably getting an anti-choice judge who will jump at the chance to apply a "balancing test" that finds that the embryos have some made-up right to be implanted that overrides both the contract between the parties and Vergara's right not to be a parent. Given his explicit framing of this matter as motivated by his anti-choice views, I think that's what he's banking on.
posted by burden at 5:22 AM on May 11, 2015
It's more likely a political (he ran as a Republican for local office on Florida) and, given rumors that he was abusive to her during their relationship, revenge thing.
Because yeah, that's somehow better? Nope nope nope. Also, this is my shocked face that a Republican candidate for office would use something like this to establish his asshole bona fides. That just never happens.
OWWWWWW. My eyes just rolled so hard I think one detached.
posted by bitter-girl.com at 6:24 AM on May 11, 2015
Because yeah, that's somehow better? Nope nope nope. Also, this is my shocked face that a Republican candidate for office would use something like this to establish his asshole bona fides. That just never happens.
OWWWWWW. My eyes just rolled so hard I think one detached.
posted by bitter-girl.com at 6:24 AM on May 11, 2015
To have first signed a contract saying it's fine if the embryos are never implanted and to then say that life begins at conception and that the embryos need to be born is quite the turnaround. Not a surprising one but blatantly hypocritical, and an interesting spin on "the only moral abortion is my abortion."
posted by The corpse in the library at 6:35 AM on May 11, 2015 [5 favorites]
posted by The corpse in the library at 6:35 AM on May 11, 2015 [5 favorites]
would they be her children then and entitled to a portion of her estate?
This section of law at least has to have been established for sperm donors 30 years ago, no?
posted by corb at 6:55 AM on May 11, 2015
This section of law at least has to have been established for sperm donors 30 years ago, no?
posted by corb at 6:55 AM on May 11, 2015
Clearly the courts should just Ask Metafilter though
DTMFEA (Dump that Motherfrozen Embryo Already)
posted by srboisvert at 6:57 AM on May 11, 2015
DTMFEA (Dump that Motherfrozen Embryo Already)
posted by srboisvert at 6:57 AM on May 11, 2015
Because yeah, that's somehow better?
Well its better if its a more accurate explanation of the situation. I don't think snickerdoodle's comment had a silent 'so that's all right then' at the end.
posted by biffa at 7:21 AM on May 11, 2015
Well its better if its a more accurate explanation of the situation. I don't think snickerdoodle's comment had a silent 'so that's all right then' at the end.
posted by biffa at 7:21 AM on May 11, 2015
This section of law at least has to have been established for sperm donors 30 years ago, no?
For some purposes, yes; in other areas, it varies state to state and case to case. There was a case where a sperm donor was made to pay child support (even though the child's legal guardians didn't pursue it), but that was due to a weird loophole that doesn't apply here.
In one case (In re Estate of Kolacy), the deceased man had previously frozen his sperm, then his widow later used it to conceive a child (after the man's death), and the court held that it was the man's child because his "intentional conduct" (freezing the sperm) was what made the conception possible. In other cases (eg Woodward), though, they needed to show that the deceased affirmatively consented to parenthood and intended to support the child (again, this is posthumous conception, so not directly on point here). The cases also look at the purpose and impact of establishing parenthood -- is it for social security benefits (most cases), or claiming part of an estate/trust, are there other beneficiaries who would be harmed, etc. Many states have rules re whether the child must be in utero or "conceived" at the time of the genetic parent's death, but many of these statutes were passed prior to the availability of IVF so may not necessarily be upheld in an IVF case.
There are also divorce cases involving the status of embryos. See Davis v. Davis, Kass v. Kass, Roman v Roman (there are many more). Whether the couple treated the embryos as property (by, for example, contracting for the use and disposition of them) seems to inform whether the courts will do so.
I can totally see some anti-choice judge saying that the child (assuming a child results) was "conceived" when the embryo was created and/or due to Vergara's "intentional conduct" and ruling that it's in the best interests of the child for it to receive financial support from Vergara. There is just a huge can of worms that opens if the embryos can be used over her objection.
posted by melissasaurus at 9:16 AM on May 11, 2015 [1 favorite]
For some purposes, yes; in other areas, it varies state to state and case to case. There was a case where a sperm donor was made to pay child support (even though the child's legal guardians didn't pursue it), but that was due to a weird loophole that doesn't apply here.
In one case (In re Estate of Kolacy), the deceased man had previously frozen his sperm, then his widow later used it to conceive a child (after the man's death), and the court held that it was the man's child because his "intentional conduct" (freezing the sperm) was what made the conception possible. In other cases (eg Woodward), though, they needed to show that the deceased affirmatively consented to parenthood and intended to support the child (again, this is posthumous conception, so not directly on point here). The cases also look at the purpose and impact of establishing parenthood -- is it for social security benefits (most cases), or claiming part of an estate/trust, are there other beneficiaries who would be harmed, etc. Many states have rules re whether the child must be in utero or "conceived" at the time of the genetic parent's death, but many of these statutes were passed prior to the availability of IVF so may not necessarily be upheld in an IVF case.
There are also divorce cases involving the status of embryos. See Davis v. Davis, Kass v. Kass, Roman v Roman (there are many more). Whether the couple treated the embryos as property (by, for example, contracting for the use and disposition of them) seems to inform whether the courts will do so.
I can totally see some anti-choice judge saying that the child (assuming a child results) was "conceived" when the embryo was created and/or due to Vergara's "intentional conduct" and ruling that it's in the best interests of the child for it to receive financial support from Vergara. There is just a huge can of worms that opens if the embryos can be used over her objection.
posted by melissasaurus at 9:16 AM on May 11, 2015 [1 favorite]
"any embryos created through the process could be brought to term only with both parties’ consent" Seems to me the whole point of this contract is to avoid exactly this situation.
The lack of ethics in this business is appalling.
posted by theora55 at 8:23 PM on May 11, 2015
The lack of ethics in this business is appalling.
posted by theora55 at 8:23 PM on May 11, 2015
Justinian: "But at least some courts seem willing to overturn similar-though-not-exactly-the-same agreements and I don't understand why they did that, either, so I dunno."
mikelieman: "when this idea of Contracts that clearly establish property rights being ignored popped up here, I thought the example that once you keep your "Contract Law" glasses on, it's all quite clear."
A further point that should probably be made is that courts routinely overrule otherwise-valid, freely-entered contractual arrangements -- most particularly pre-nups -- when they disadvantage children in a way the court feels is not in the best interest of the child or that, as a matter of public policy, parents shouldn't be permitted to disadvantage their children. So it's not surprising that courts feel some latitude in NOT apply contract or property law in what is arguably a family law situation. That's part of what makes these cases messy, and a big part of what makes their outcomes hard to predict.
posted by Eyebrows McGee at 8:59 PM on May 11, 2015 [3 favorites]
mikelieman: "when this idea of Contracts that clearly establish property rights being ignored popped up here, I thought the example that once you keep your "Contract Law" glasses on, it's all quite clear."
A further point that should probably be made is that courts routinely overrule otherwise-valid, freely-entered contractual arrangements -- most particularly pre-nups -- when they disadvantage children in a way the court feels is not in the best interest of the child or that, as a matter of public policy, parents shouldn't be permitted to disadvantage their children. So it's not surprising that courts feel some latitude in NOT apply contract or property law in what is arguably a family law situation. That's part of what makes these cases messy, and a big part of what makes their outcomes hard to predict.
posted by Eyebrows McGee at 8:59 PM on May 11, 2015 [3 favorites]
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Then one could argue that he split them up to have it his way.
posted by Brian B. at 3:29 PM on May 10, 2015 [3 favorites]