The American Fertility Association Blog
The Real Grey’s Anatomy Cliffhhanger - What Will They Do With Izzy’s Embryos?
May 16, 2009 - Saturday
Posted by admin
12:15 p.m.
By: Steven H. Snyder, Esq.
O.K., Izzy and Alex have a baby. Well, sort of. But they are going to have a baby, right? Well, maybe. If Izzy lives. Even if she doesn’t live? Hmmm . . . If this were happening in the real world, what would be the odds and possible outcomes? Let’s see if we can write the script(s) for next year’s opening episode.
T.V. Show Background: Izzy has cancer, and she is worried that her treatment and/or outcome may affect her fertility. She is in love with Alex (or is she still in love with the ghost of Denny?), so, in spite of the fact that they are not yet married, she and Alex undergo in vitro fertilization and create embryos for storage and future use using Izzy’s eggs and Alex’s sperm. Izzy has surgery (but can’t remember it), and now we just don’t know if she is going to live or die. But those embryos are there, and Alex, now that he has married Izzy, will definitely survive (barring an unexpected off-season car accident - one never knows!).
Legal Background: I won’t bore you with details, but the courts in the U.S. have had occasion to address the status, possession, and use of embryos.
The soap opera summary is that embryos are generally regarded as neither property nor persons (except in a very rare state like Louisiana); they occupy some category in between and are entitled to “special respect” because of their potential for human life. (This means that accidentally destroying an embryo won’t subject the responsible party to murder charges or wrongful death lawsuits, but the persons whose sperm and eggs are used to create them are entitled to possession, control, and recovery of their own embryos.) Therefore, if a clinic (or hospital like Seattle Grace) wants to keep or control the embryos against the wishes of the genetic parents, they it can’t. The parents get the embryos and can move them or use them as they wish as long as they agree.
If the parents don’t agree on the use of the embryos, especially where they get divorced, there are a variety of theories that determine whether either parent can use the embryos against the wishes of the other. Again, generally speaking, if the parents disagree, the parent who does NOT want to use the embryos wins. (Just as a person has the right to procreate, each also has the right not to procreate.) The courts have not yet forced a person under these circumstances to procreate against his or her will. This may be because the documents the couple signed at the hospital stated that they couldn’t use them, it may be in spite of what the documents say because of intervening changes in their circumstances, or it may simply be because the parent seeking to use the embryos has other options to procreate without the sperm or egg of the former partner.
If one of the parents dies, the embryos generally belong to both parents, so the survivor should be able to use them as he or she sees fit. This is particularly true if the documents signed at the hospital at the time of the IVF procedure give the survivor permission. If there are documents, the hospital will honor them, and the courts will likely give them full force and effect. (Did we ever hear about or see any such documents in that episode? Hmmm . . .)
The real question if one parent dies is whether, if and when the survivor uses the embryos, the resulting children are the legal children and heirs of both parents (including the deceased parent) or just the surviving parent. If the surviving parent is the man, the only options for use of the embryos becomes through a surrogate or the man’s subsequent significant other (or wife?). If it is with a new partner who intends to parent the child, it is unclear who the child’s legal parent will be - the deceased genetic mother’s or the new birth-parent partner’s? Is this more like a surrogacy or an egg/embryo donation? Will the child inherit from the genetic father’s estate, the deceased genetic mother’s estate, the birth-mother partner’s estate, or all three. (Whatever happened to that huge inheritance Izzy received?)
The courts have not dealt specifically with this issue to my knowledge except in the context of social security benefits for posthumously conceived and born children. The question for social security purposes (simplistically put) is whether the deceased parent had the duty to support the child under the law of the state where it was born. Most states have answered this question, “Yes,” and children born up to 2 ½ years after the death of one parent have become eligible for social security dependent survivor benefits.
So. Back to the world of T.V.
Izzy lives and she and Alex stay married: They use the embryos cooperatively. They have children, and they live happily ever after (or until one of them suffers some other debilitating disease and dies). (Maybe they both die later and Meredith and McDreamy become guardians of the resulting children and raise them as their own!)
Izzy lives and realizes she should never have married Alex and divorces him: They fight over control and use of the embryos. We may find out whether they have any signed agreements (and which doctor advised them about their effect). Whatever the outcome, the person not wanting to have babies with the embryos wins (I think). (Does this change if Izzy wants to use them without Alex, and her cancer has left her unable to have children any other way? Hmmm . . . )
Izzy dies and Alex is so crushed he can’t ever love anyone else and just has to have Izzy’s children: He should have control over the embryos (but check out the documents and consents they may have signed), so he uses a surrogate to gestate the children and becomes a single parent. He subsequently applies for social security benefits for the children and succeeds (as long as they weren’t born too long after Izzy’s demise). Is Izzy’s inheritance still floating around, is it in trust, and can the children benefit from it? Hmmmm . . .
Izzy dies and Alex realizes he really loves Callie, and they get married and use the embryos: Do the documents at the hospital allow this much leeway to Alex? If so, he and Callie have the children, and we find out whose kids they legally are and whether they inherit from only one or both mothers, genetic and birth. My vote is that Callie becomes the legal mother, and the children retain the right to inherit form Izzy’s huge estate (or was that all donated to charity?)
I wish I could be inside the minds of the writers of Grey’s. It would make it so much easier to predict what is really going to happen. The interesting (and, perhaps, somewhat scary) thing is that T.V. is just following real life. The questions discussed somewhat lightly above are very real, very serious questions that will someday have to be decided in the real world. Perhaps this just gives us the opportunity to reflect, become aware, and better prepare ourselves for our own life’s decisions. Good luck!
Steven H. Snyder, Esq., is the founding and principal partner of Steven H. Snyder & Associates, ATTORNEYS AT LAW. Mr. Snyder’s primary areas of practice are Assisted Reproductive Technology Law and related Estate Planning.
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