The couple subsequently separates, and the man successfully argues in court that the woman should not be allowed to use the frozen embryos, thereby blocking her access to her last opportunity to be a genetic parent.
In another example, a woman in her mid-thirties has sexual intercourse with a fifteen-year-old boy, and the encounter leads to pregnancy. Despite constituting statutory rape, the woman’s request for the father to pay child support upon the birth of the child is granted by the court.
Why did the courts treat these two instances of unwanted fatherhood differently, and what do their decisions suggest about broader societal issues in family law and reproductive health?
A self-described feminist legal scholar, Purvis examines these questions through a masculinities theories lens, which involves looking at stereotypes of men’s behavior. For example, men are simply breadwinners who give their children financial but not emotional support and are themselves not emotional beings and asking what harm such stereotypes cause to men.
Do Emotions and Morality Mix?
She also explores the inconsistencies in how courts define ‘personhood’ when an embryo or fetus is considered a moral person with legal rights.
Personhood has now arisen as an important theme in the abortion debate, and how the term comes to be officially defined will have an impact not only on abortion cases but assisted reproduction cases as well. If embryos are granted personhood status, then the Supreme Court may rule that an abortion ban is constitutional.
The Supreme Court’s ruling order may also impact decision-making related to frozen embryo disputes. In cases of frozen embryo disputes, the courts have so far rejected the concept of fetal personhood.
This is demonstrated in the example of the court’s ruling in favor of the man who did not wish to allow his former partner to use the frozen embryos he helped to create.
Not only will this precedent be relevant if states are considering passing abortion statutes, but it also shows that the implications of fetal personhood reach into areas that people may not have considered, namely assisted reproductive technologies (technologies used to treat infertility).
A court that credits a woman’s emotional appeal that conforms to gendered stereotypes about women’s desires to be mothers, yet dismisses a man’s emotional appeal, turns the balancing approach from an assessment of interests into a tool reinforcing sexist prejudice.
What’s the Solution?
To remove gender-based inconsistencies concerning parenthood in frozen embryo disputes, authors suggest that a ‘contractual approach’ is the “least bad” option.
A contractual approach would enable each partner to weigh their preferences and emotions around parenthood and memorialize their plans in the agreement.
Legislatures could require a certain period in between executing the agreement and undergoing IVF treatment and could also require independent legal counsel or psychological counseling for both potential parents.
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