Although this case is complicated by the fact that one parent of the frozen embryos wants them destroyed while the other wants to have them used, it illustrates how the law is still not yet clear on many issues of ownership and the status of frozen embryos. Previous rulings have emphasized the "special status" of the frozen embryos.


N.J. high court rules in frozen embryo case

August 14, 2001 Posted: 2:01 PM EDT (1801 GMT)

TRENTON, New Jersey (CNN) -- Attorneys for a New Jersey man plan to ask the United States Supreme Court to reverse a state court ruling that said he did not have the right to use embryos created through in vitro fertilization without his ex-wife's consent.

The New Jersey Supreme court ruled unanimously that the woman, identified only as J.B., had a right not to procreate, which outweighs the right to procreate by the man, identified as M.B.

The court ruled that the divorced man's wish to have the frozen embryos implanted in another woman would make his ex-wife a mother against her will. The justices, however, ruled that the father may decide whether the seven embryos should be kept in storage or destroyed.

But Eric Spevak, the man's lawyer, said the embryos would remain in storage.

"At least it gives us a chance to file an appeal with the U.S. Supreme Court," he told The Associated Press.

The husband wanted them preserved so they could be implanted in a new spouse, but his former wife sought to block that.

"M.B.'s right to procreate is not lost if he is denied an opportunity to use or donate the pre-embryos. M.B. is already a father and is able to become a father to additional children, whether through natural procreation or further in vitro fertilization," the court wrote.

"In contrast, J.B.'s right not to procreate may be lost through attempted use or through donation of the pre-embryos. Implantation, if successful, would result in the birth of her biological child and could have lifelong emotional and psychological repercussions," the court added.

The couple went through the in vitro fertilization procedure in 1995, creating 11 embryos. Four were implanted in the woman and the remaining seven were frozen and put into storage.

The couple had a child in 1996 and divorced later that year.

The woman wanted the embryos to be discarded, but her husband disagreed, saying that she had agreed to either have the embryos implanted or donated to other infertile couples.

The ex-husband said he had a moral objection to destroying the embryos.

The court rejected the man's argument that she had entered into a binding oral contract as well as his argument that the couple had gone through in vitro fertilization "to create life."

The woman had stated in previous court proceedings that she "endured the in vitro process and agreed to preserve the pre-embryos for our use in the context of an intact family."

A state appeals court had ordered that the embryos be destroyed, but Tuesday's ruling stated that since the woman did not object, the embryos could be kept frozen if the man would pay the storage costs.

The man and woman have been barred from speaking publicly about the case because they have a child together who judges believed would be adversely affected by the decision.

James Katz, an attorney for J.B. said she was thrilled with the ruling.

"We think the decision reaffirms everything that we argued, that parenthood should be a matter of choice not of coercion and that bringing a child into the world is an act of love and should not be bartered in the marketplace."

J.B. is a single mother living in Camden County, N.J. She is raising a second child from a previous relationship. Tuesday's decision affirms a lower court's ruling in her favor.

"If one party changes his or her mind, that party will prevail," Katz said. "We're not going to force someone to become a parent against their will."

Tuesday's ruling was the fourth such action by a state supreme court. Tennessee's high court said embryos in this situation are in limbo between property and personhood and should be afforded "special respect."