What Happens to Pre-Embryos When a Couple Breaks Up?

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Photo: Rafe Swan/Getty Images

Consider this situation: A couple is unable to have children the conventional way and decides, instead, to harvest their eggs and semen, then form and freeze a batch of pre-embryos. These pre-embryos contain the biological makeup of both partners, and can be unfrozen and implanted at a later date, when medical issues, say, no longer pose a risk. 

This is what a couple in Madeleine Schwartz's New Yorker post opted to do, when Karla Dunston's diagnosis of non-Hodgkin's lymphoma made future pregnancy, conceivably with her then boyfriend Jacob Szafranski, impossible. The couple later broke up, but the embryos remained. So who should have the final say on what becomes of them? 

Scientifically and legally, a frozen embryo is not the same as a living child. Nevertheless, even if the embryos under discussion are understood not yet to be persons, there seems to be no clear way to describe the kind of decision the prospective parents are trying to make.

The couple Schwartz writes about is not the first to take a pre-embryo case to court. (Modern Family star Sofia Vergara is reportedly involved in a legal dispute with her ex over frozen embryos: He says he believes "life begins at fertilization" and wants custody.) In the most recent ruling on Szafranski v. Dunston, which disputes whether Dunston should be allowed to use the embryos, the court sided with Dunston, but the case could go to the Illinois Supreme Court.

Cases like these date back nearly as far as the medical science they depend on and tend to shake up debates around abortion rights (who decides the fate of a zygote? At what point do cells count as people?) as well as relationships. As such disputes become more common, more couples may decide to make provisions for what to do in the event of divorce or disunion.

"Usually when embryos are created, whether the couple is married or just consenting adults, there's usually a power of attorney that is described to these embryos, if they are frozen for future use," one fertility specialist told CNN. "In most cases, the mother or the origin of the egg is given power of attorney, although anyone can make a request." But when a disagreement arises over who legally "owns" the embryos, it's up to the court to decide.