In recent years more and more couples quarrelling over embryos from the sunnier days of their relationship have appeared in court. The latest story to hit the US press was that of Jalesia McQueen and Justin Gadberry, a divorced Missouri couple fighting for custody of 10-year-old embryos.
Two embryos were “left over” after McQueen and Gadberry used IVF to have their twin boys, now 8. A Missouri County Court ruled that the couple ‘jointly’ owns the remaining embryos, but McQueen and Gadberry are at loggerheads. She wants to have more children; he wants have the embryos destroyed.
Late last month McQueen appealed the ruling to the Missouri Court of Appeals, saying that the embryos are living beings and should not be destroyed. "When you go through this process and see these embryos created, they're your babies," McQueen said Wednesday at news conference at the Old Courthouse in downtown St. Louis, the historic building where 19th century slave Dred Scott fought to gain his freedom.
McQueen’s very public appeal is indicative of a broader trend in embryo disputes: affected parties have increasingly been appealing to the legal status of embryos as persons to prevent their destruction.
A pro-life organisation, Missouri Right to Life (MRL), has become heavily involved in McQueen’s appeal, and even fronted the press with her. "Natural law tells us the African-American male is not human property," said Gerard Nieters, MRL legislative director. "And it tells us that frozen embryos are not human property."
No US jurisdiction treats embryos as persons or entities entitled to constitutional protection. Gadberry’s attorney, Tim Schlesinger, called McQueen’s appeal a “media stunt”.
Yet there are a number of briefs being prepared for courts regarding personhood of embryos. The Chicago-based Thomas More Society, which is providing legal assistance to McQueen, has filed a “personhood” request in Los Angeles in a dispute between "Modern Family" star Sofia Vergara and ex-boyfriend Nicholas Loeb, who wants custody of the frozen embryos they created before breaking up. The Society says that there is legislation in a number of US jurisdictions stating that life begins with conception.
The Atlantic recently published a feature about the early days of artificial reproductive technology. The headline was: “The First Artificial Insemination Was an Ethical Nightmare: The 19th-century procedure involved lies, a secrecy pledge, and sperm from a surprise donor”.
It turns out that the first pregnancy with artificial insemination (at least in the US) was in 1855 in New York but it ended in a miscarriage. The first successful pregnancy with the same method took place in Philadelphia in 1884.
The patient was a married woman whose husband was infertile because of venereal disease. Without seeking the consent of either husband or wife, the doctor anaesthetised her and inseminated her with the sperm of one of his medical students. The women never discovered the truth and the students were sworn to secrecy.
However, when her baby was a 25-year-old businessman one of the students published his recollections of the event (after contacting the child). As far as he was concerned, artificial insemination was a eugenic boon, “a race-uplifting procedure”, which would produce children of “wonderful mental endowments” instead of “half-witted, evil-inclined, disease-disposed offspring”.
The author of the article in The Atlantic was amused by the old-fashioned lies, secrecy and donor anonymity. But has any of that changed? Most children born from contemporary reproductive technologies are “genetic orphans”. Most parents shop for donors who will confer “wonderful mental endowments” upon their offspring. Plus ça change, plus c'est la même chose.
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