What You Wish For: A Look at the Custodial Rights to Frozen Pre-Embryos Through the Lens of Women’s Fiction

Chick Lit/Women’s Fiction novels tend to follow two main formulas: (1) the main character is in her twenties and all events revolve around the impending doom of turning 30 and the need to marry by that fateful age; or (2) the main character is in her thirties and all events revolve around the impending doom of turning 40 and the need to have a baby by that barren age.  Kerry Reichs’ What You Wish For falls into the latter category, with a few twists and turns for added interest.  This novel has five interconnected protagonists, each the focus of alternating chapters, who are pursuing different paths to build their families. The book is reminiscent in structure and in theme to Jennifer Weiner’s Then Came You, which I discussed a few weeks ago, focusing on its portrayal of surrogacy agreements in Pennsylvania.

What You Wish For contains many legal scenarios, including a lawsuit for custody over frozen embryos.  Maryn, a woman in her late thirties and a breast cancer survivor whose cancer treatment left her unable to bear children, sues Andy, her ex-husband, for custody of the frozen pre-embryos. (A “pre-embryo” is a fertilized ovum before it implants in the uterus.) During a better time in their relationship, they had produced and stored these pre-embryos at a fertility treatment center in the hopes that they could have a child together someday. Selena, an attorney, tells Maryn that the likelihood her lawsuit would succeed—meaning that the court would allow her to have the pre-embryos implanted against the wishes of her ex-husband—was low.  Her attorney says:

The court sees the ‘right of procreational autonomy’ as composed of two equal parts—the right to procreate and the right to avoid procreation.  They’ll consider the position of the parties, the significance of their interests, and the relative burdens.  I must be honest, the court defers to the right against the ‘burden of unwanted parenthood.’

Essentially, the lawyer is telling Maryn that her ex-husband’s right not to be a parent will likely trump her right to have biological children, except, Selena notes, that it is possible that the court could have sympathy for an infertile cancer survivor who agrees not to seek child support from her former husband.  In general, Reichs, who was a practicing attorney for a number of years, got the law right on this issue.

This fictional case takes place in California, a state that, to my knowledge, does not have an actual case directly on point nor a relevant statute. A few states have addressed custodial rights to frozen pre-embryos through legislation, e.g. Florida and Texas, and other states have addressed the issue through case law.  The majority of cases addressing this issue have found that any previous agreement between the parties about the disposition of pre-embryos controls.  In the absence of an agreement or if the agreement is void, then generally, the right of parent wishing to avoid procreation prevails, thus resulting in the destruction or continued storage of the frozen pre-embryos.  See e.g., Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); Kass v. Kass, 91 N.Y.2d 554 (1998); A.Z. v. B.Z., 431 Mass. 150 (2000); J.B. v. M.B., 170 N.J. 9 (2001); Litowitz v. Litowitz, 48 P.3d 261 (WA 2002); In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003); Roman v. Roman, 193 S.W.3d 40 (Tex. 2006); In re Marriage of Dahl & Angle, 222 Ore. App. 572 (2008).

Interestingly, shortly before the publication of Reichs’ novel, the Superior Court (an intermediate appellate court) in Pennsylvania (my home state) had a case very similar to the facts of Maryn v. Andy, and for once, a party’s right to procreate prevailed.  In Reber v. Reiss, 42 A.3d 1131, the 44-year-old wife, a breast cancer survivor, sought to have the pre-embryos she had created with her former husband implanted after their divorce.  Their prior written agreement dealt with storage of the embryos, but not with disposition.  The fact that the wife was childless and unlikely to have children by other means due to her infertility, age, and previous health status swayed the court, which noted the obstacles the wife would face if she sought adoption because of her health history and age.  In previous cases without a prior written agreement specifying disposition of the pre-embryos, cited above, the people seeking custody of pre-embryos in order to implant them had children already and/or had a greater likelihood of having future biological or adoptive children.

So, who knows, maybe Maryn’s likelihood of success would have been higher than previously thought due to her childless status, infertility, and previous health history.  The  fictional case of Maryn v. Andy did not end up being decided by the court, but that’s the only spoiler I’ll give you.  Check out the book for yourself if you want to find out what happens.

4 thoughts on “What You Wish For: A Look at the Custodial Rights to Frozen Pre-Embryos Through the Lens of Women’s Fiction

  1. Pingback: The Best Day of Someone Else’s Life: Wedding Clichés with an Element of Truth | The Misfortune Of Knowing

  2. It would simplify things if these couples stored her eggs and his sperm. Then she would always have access to the eggs and could get them fertilized, if she wished, any old way. But couples are usually “in love” when they decide this stuff.

    Even the fact that it occurs more often will probably not sway them from their decisions made during that altered state.

  3. Pingback: Why Do Lawyers Write Fiction? | The Misfortune Of Knowing

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