From (Moral) Status (of the Frozen Embryo) to (Relational) Contract and Back Again to (Relational Moral) Status
The existing hundreds of thousands of unused frozen embryos, coupled with the skyrocketing rate of divorce, raise numerous moral, legal, social, and religious dilemmas. Among the most daunting problems are the moral and legal status of the frozen embryo; what should its fate be in the event of conflicts between the progenitors?; and whether contractual regulation of frozen embryos is valid and
enforceable. This Article applies relational ethics, drawing on, inter alia, the relational contract to resolve such intertwined dilemmas. Applying this theory, this Article will challenge the conventional dichotomous conceptualization of the frozen embryo as either a person or a nonperson. This Article will discuss why the legal and moral status of the frozen embryo should be determined as a derivative of the desired or undesired relationship between the progenitors, articulated in a mandatory disposition agreement. The progenitor who is interested in using the frozen embryo and bringing the child into the world defines it as a person, whereas the progenitor who opposes its usage determines its status as a nonperson – an object. Consequently, this Article argues that in the event of an explicit disposition agreement, the contract should govern whether the frozen embryo will be used, discarded, adopted and/or earmarked for research. The relational contract provides adequate contractual devices to address any problems arising from changed circumstances or changes of heart. In those cases where there is no explicit disposition agreement, or when the explicit agreement does not stipulate what should be done with the embryos under special or unanticipated circumstances, the party interested in using the embryo should prevail. The recalcitrant progenitor, who is not interested in using the embryo and becoming a parent, should not be subject to a legal determination of parental status and its attendant responsibilities.
Copyright © 2012 by the Trustees of Indiana University. Except as may be expressly provided elsewhere in this publication, permission is hereby granted to produce and distribute copies of individual works from this publication for non-profit education purposes, provided that copies are distributed at or below cost, and that the author, source, and copyright notice are included on each copy. This permission is in addition to rights of reproduction granted under Sections 107, 108, and other provisions of the U.S. Copyright Act and its amendments.
The Indiana Health Law Review (ISSN 1549-3199) is the property of Indiana University and is published two times per year by the Indiana University Robert H. McKinney School of Law, which assumes complete editorial responsibility thereof.