opinion web
Conservative Opinion General Opinion
Susan Estrich
18 Nov 2015
Ben and Bernie's World

In the wake of the horrors in Paris, it only made sense to change the focus of Saturday night's Democratic … Read More.

13 Nov 2015
This Year's Abortion Battle

On Friday, the United States Supreme Court agreed to review the Texas abortion law that, were it allowed to … Read More.

11 Nov 2015
Florida's Favorite Sons

The news reports earlier this week that Jeb Bush's super PAC is ready to go after his former protege, Marco Rubio,… Read More.

Can We Talk About a Frozen Embryo?


I'm more than a little reluctant to write this column. Whatever I write will be interpreted through another lens: that of the abortion debate. One of the many bad consequences of a debate that has now lasted more than four decades is that we can't talk about anything without first trying to fit it within the abortion debate, which is not necessarily the only or best way to look at it.

So just for a moment, let's assume that Roe v. Wade is the law of the land, as it has been for more than four decades, and just focus on the question at hand:

A husband and wife freeze their embryos. Eventually, the couple ends up divorcing. The man doesn't want to be a father with his ex-wife. His ex-wife is a 46-year-old woman who froze these embryos before she had cancer treatment. She has about zero chance of getting pregnant without them. What do you do?

For the lawyers, this question is made easier by two points: the couple signed a form provided by the clinic in which they agreed to destroy the embryos if they divorced; and they're in California, where, until this week, no court had ever ruled on the question. That's because surrogacy is legal in California, and contracts are generally enforceable.

"It is a disturbing consequence of modern biological technology that the fate of nascent human life, which the embryos in this case represent, must be determined in a court by reference to cold legal principles," the judge wrote. She went on to enforce the contract, finding that the wife, an anesthesiologist, was smart enough to understand what she was signing.

The wife, Dr. Mimi Lee, did sign a contract.

And contracts are enforceable by courts. On the other hand, if a contract is against public policy, that is grounds for non-enforcement.

I don't care what kind of contract she signed, I have never heard of a case in which a woman was forced to terminate a pregnancy because the man didn't want to father a child with her. That a woman lied about taking birth control is no defense for the father in a paternity claim.

The Superior Court wrote a careful, 83-page opinion, but there are some pretty gaping holes. For instance, Lee's expert said she had a .03 percent chance of getting pregnant, while the fertility clinic said the chances of pregnancy were between 0 percent and 5 percent. On this basis, the court concluded that she hadn't proved that this was her only chance. Getting pregnant at 46 after cancer treatment is both stunningly impossible and, in the eyes of many oncologists, dangerous — doing it within five years of treatment can contribute to a recurrence. And then there are the mega-fertility-drugs she would need to take.

No, it seems to me that there's nowhere to hide: She wants to be a mother; he doesn't want to be a father. An embryo is not life, but it isn't an expensive painting or a block of stock, either. Commodifying it, treating it like any other object of a contract, seems wrong — not from the point of view of the expanding cells in the embryo, but from that of the parents, and especially the mother. The ex-husband can look forward to someday having a family with another woman. Dr. Lee is losing the only chance she has at what is, for many of us, the most important thing we ever do, which is to have our children.

As we say in the legal world, hard cases make bad law.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at



5 Comments | Post Comment
I just read the judge ruled that the embryos must be discarded. This is strangely a very sad story, My wife and I have children and can understand why it might be so important for this woman to keep hope, hope is what children represent in the larger sense. Why the ex-husband wants to deny her that hope is hard for me to understand, but there must be a reason I can't fathom. Was he being held responsible financially for the prospective child?

Prospective child - I suppose this is what we get for playing God. The judge might have felt just that way in deciding that in lieu of God the human contract must be enforced.

Ms. Estrich wrote an interesting and thought provoking article today. Maybe too many lawyers make for bad law.
Comment: #1
Posted by: Tom
Fri Nov 20, 2015 11:50 AM
I seem to recall reading that she was not planning to ask for child support.
I'm not sure I would call the problem "playing god". There are many such circumstances where modern medicine exceeds our ability to deal rationally with the subject. We can hold people in the twilight zone between life and death for years in ways not previously imaginable, leaving us with the impossible task of deciding when to say enough is enough. Humans are never comfortable with large gray zones and the boundaries in medicine are getting grayer all the time.
Comment: #2
Posted by: Mark
Fri Nov 20, 2015 9:00 PM
They froze embryos in case they wanted children, together. That "together" is a significant word in this case. It was so significant that the couple agreed to destroy the chance of reproducing, together, if they were divorced. The "She doesn't even want child support, so what's the problem?" nonsense might make sense for anonymous sperm donation, but that is not the case; she wants to create his child against his will. Child support or not, knowing that you have a child causes a significant life change, even for lowly men.

Susan, would you be as supportive if he was trying to implant his wife's embryos in his new girlfriend?
Comment: #3
Posted by: GL
Sun Nov 22, 2015 6:41 PM
Mark, what you say is so true, the gray area is increasing and it is hard to keep up with the technology.,

I see GL's point as well. All sides of the compass ring true, I suppose this is why I found it so sad...
Comment: #4
Posted by: Tom
Mon Nov 23, 2015 6:40 AM
Comment: #5
Posted by: joseph wright
Tue Nov 24, 2015 10:17 AM
Already have an account? Log in.
New Account  
Your Name:
Your E-mail:
Your Password:
Confirm Your Password:

Please allow a few minutes for your comment to be posted.

Enter the numbers to the right: comments policy
Susan Estrich
Nov. `15
Su Mo Tu We Th Fr Sa
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30 1 2 3 4 5
About the author About the author
Write the author Write the author
Printer friendly format Printer friendly format
Email to friend Email to friend
View by Month
Roger Simon
Roger SimonUpdated 25 Nov 2015
Jim Hightower
Jim HightowerUpdated 25 Nov 2015
Froma Harrop
Froma HarropUpdated 24 Nov 2015

17 Jul 2013 Why the Crenshaw Wal-Mart?

8 May 2009 A Mother's Job

11 Nov 2009 The San Francisco Democrat