A Custody Battle Over Embryos

Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

A reader, Mimi Lee, introduces a new and rare experience to our ongoing series:

Ten days before my wedding, I was diagnosed with breast cancer. As a doctor, I naturally freaked out and quickly arranged my own lumpectomy within 48 hours of the diagnosis. I celebrated my new marriage surrounded by friends and family, wrapped in surgical dressings.

We returned from the honeymoon and embarked on a single round of artificial reproductive technology (ART) to preserve my fertility and our chances to build a future family. Meanwhile, I learned from a pathologist colleague that my cancer had not been completely removed, so after multiple consultations and opinions, I prepared for a mastectomy.

Amidst this whirlwind of uncertainty over the big C, I carefully emptied vials, mixed drugs, and prepared syringes for ART—only this time, it was not for any of the thousands of patients I had cared for as an anesthesiologist who specialized, ironically enough, in fertility. The prep was for me, inspired by the hopes and dreams of my own biological motherhood once I stomped cancer out of my life.

The ART went extremely well. At age 41, I had 18 eggs harvested. Twelve were fertilized and yielded five beautiful-looking embryos—my future babies. Two weeks after the embryos were frozen, I underwent my mastectomy.

A year later, after acknowledging that pregnancy was contraindicated for my type of breast cancer, my husband and I scanned gestational profiles at a surrogate agency. A year after that, he told me he wanted a divorce. After we separated, I underwent two more years of legal proceedings, which amounted to a full-time job, leading to a courtroom battle for the custody of the frozen embryos. My future babies’ lives hung in the balance.

Devastatingly, I lost that battle, and the embryos were ordered destroyed. With that, my ambitions of biological motherhood were forever silenced.

Like many educated, career-minded women, I had postponed marriage and motherhood until it was too late. My cohort of women was instructed to wait until “the time was right.” For me, that meant waiting until my career was stable and my financial independence was established. Many women I knew had chosen either motherhood or a career. Now many of the empty-nested moms are struggling to create new identities while the career women are struggling with feeling left behind, single and childless.

I lie somewhere in between. I have landed in a new career, but I was almost a mom. What feels terrible is that I missed the chance to keep my babies safe and secure.

ART is at once incredible and terrifying. It is fraught with ethical, legal, and socioeconomic minefields. Designer babies are happening now. Gender selection, physical features, and even genetic predispositions are all options. Furthermore, given the price tag, it’s only an option for those who can pay, generating huge concerns about the morality of our society. Why should parents who aspire to parenthood equally, but lack the out of pocket cash required, be left behind?

Finally, due to the lack of legal policy to reign in the practice, women and men are getting hurt. Custody battles are on the rise. Embryos hang in limbo. In my case, rhetoric borrowed from pro-choice arguments was used against me, and my ex argued that he had a right to not become a parent. This, however, failed to acknowledge the fundamental fact that accidental unwanted pregnancies differ vastly from the deliberate, invasive, expensive and time-consuming journey of ART.

Mimi is writing a memoir about her experience, and you can read more on her website, BabyEmbryos.com. The legal details of her story are here.

Another very public battle over embryos took place in 2010, when Jennifer McLaughlin, after giving birth to twins derived from embryos donated by a couple, sought custody of the two remaining embryos because they were genetic siblings to the twins—but the couple wanted to donate the embryos to another woman. McLaughlin appeared with her lawyer on The Early Show:

The case was settled that year with undisclosed details.

Perhaps the most high-profile custody battle over embryos involves the actress Sofia Vergara, whose ex-fiance, Nick Loeb, tried to gain custody of the couple’s two frozen embryos after she wanted to keep them “frozen indefinitely.” In 2015, he took to the op-ed pages of The New York Times and appeared on The Today Show to make his case:

From Loeb’s op-ed:

A woman is entitled to bring a pregnancy to term even if the man objects. Shouldn’t a man who is willing to take on all parental responsibilities be similarly entitled to bring his embryos to term even if the woman objects? These are issues that, unlike abortion, have nothing to do with the rights over one’s own body, and everything to do with a parent’s right to protect the life of his or her unborn child.

Abortion is indeed more difficult territory, as was evident in a battle over an embryo featured in Katie O’Reilly’s Atlantic piece, “When Parents and Surrogates Disagree on Abortion”:

In January, Melissa Cook, a 47-year-old California surrogate currently pregnant with triplets, sued the commissioning father, a single 50-year-old Georgia postal worker, who wanted her to abort one of the fetuses. (The egg used to create the three embryos implanted in Cook was sourced from an anonymous, 20-something donor.) Cook, who is pro-life, filed a lawsuit in Los Angeles Superior Court, claiming California’s surrogacy law violates due process, as well as equal-protection rights guaranteed in the Constitution.

Cook says she wants to take all three fetuses to term, adopt the unwanted third, and collect her full surrogacy fee. She also wants the court to rule that her surrogacy contract is unenforceable, which would protect her from the consequences of breaching her contract and possibly allow her to keep the multi-thousand-dollar fee stipulated in her gestational carrier agreement.

“She’s trying to get the state of California, essentially, to not recognize the contract she signed,” explains Elura Nanos, a fertility attorney based in New York.            

Ultimately all the triplets were born and went into the custody of the father, and the surrogate lost her legal effort to gain custody herself.

If you happen to have your own personal story of a legal battle over embryos, please send us a note.