Do Ohio Courts Consider Frozen Embryos Property or Life?

Are frozen embryos considered life?

That’s the question some states are asking as a movement calling for legal personhood for embryos has gained traction across the country with victories in states like Louisiana and Alabama, the latter of which temporarily halted in vitro fertilization. Other states have pending legislation that could cement personhood.

The Southern Baptist Convention recently weighed in on the debate, condemning in vitro fertilization, a process that involves combining a sperm and an egg in a laboratory and transferring the fertilized egg into the uterus to cause a pregnancy. The church said the process systematically creates more embryos than can be implanted, leading to the destruction of what it considers human life, Reuters reported.

Recently in Ohio, Judge Donna Carr of the Ninth District Court of Appeal ruled in a divorce case that frozen embryos are “life, or the potential for life,” although legal experts say that the court has always treated embryos as marital property.

Reproductive freedom advocates fear such a move could limit access to IVF and other medical care.

For legal experts, the ruling underscores Ohio’s complex relationship with frozen embryos, which state law considers property.

Why are embryos considered property in Ohio?

Ohio treats embryos as property, not lives, which means that a person who owns an embryo can do whatever they want with it: germinate it, destroy it, give it away, or assign it to others. research purposes.

That set a precedent for much of Ohio’s history, said Tracy Thomas, a professor of constitutional law and gender law at the University of Akron.

“Historically, it wasn’t a thing at all,” she said of the personality debate. “It’s genetic material, but even unrelated to that, they treated it like an organ donation.”

Frozen embryos most often appear in divorce cases, where one or both parties seek ownership of embryos produced during their relationship. Rather than engage in custody litigation, Ohio courts have historically distributed embryos as property.

How do courts treat pre-IVF contracts?

Before undergoing IVF, patients sign a pre-IVF agreement, which outlines what happens to the frozen embryos if one or both parents die or if they divorce, Thomas said.

“The whole purpose of contracts is to leave no questions open and to avoid litigation,” Thomas said. “This is so you supposedly have the best idea of what you want to happen in the event of (divorce or death).”

Contracts must specify who can use the frozen embryos, or the parties agree to destroy them or give them to another couple or for research, she said.

If there is no contract or it is an ambiguous contract, the courts decide what to do.

What does the Ninth District Court of Appeals decision say about frozen embryos?

A recent Summit County case in the Ninth District Court of Appeal lacked a clear contract, so judges balanced the interests of the divorcing wife and husband when they failed to agree hear about how to distribute the embryos, Thomas said.

The husband wanted the embryos to be used by other couples, but not by his wife, because he did not want to have biological children with her, according to the judgment. The woman wanted to use the embryos.

In the decision giving his wife the 14 embryos, Carr wrote that the chances of pregnancy “will only diminish” as a woman ages.

According to Thomas, this decision protects the wife’s reproductive freedom since she wishes to become pregnant.

Carr also said the husband “should always have a say in what role, if any, he will play in the child’s life.” The wife testified at a hearing that she would “respect the husband’s wishes.”

This decision, Thomas said, can be divided into two parts. First, the court ruled on intent, which is a question of ownership. Second, the husband has the option of renouncing parenthood.

“What (the court) seems to be doing is going back to intent, and there are two points of intent in IVF,” Thomas said. “(The court) can turn him from an intended parent into a sperm donor without any legal obligation.”

What have other courts said about pre-IVF contracts?

Other appellate cases have upheld pre-IVF contracts, Thomas said, but those cases involved clear contracts explaining how the embryos would be divided.

In a 2009 judgment written by Judge John Wise of the Fifth Appellate Court, the court ruled that lower courts had neither the authority nor jurisdiction to interfere with contracts. Two years later, in 2011, the First Appellate District Court also upheld a pre-IVF contract.

Has the U.S. Supreme Court’s Dobbs decision changed how states treat embryos?

The 2022 U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which struck down federal abortion protection, removed the term calling frozen embryos life-giving, Thomas said . This allowed states to determine how they treat embryos; Alabama now considers embryos “ectopic children.”

A 2022 ruling from the Eleventh Court of Appeals in Portage County recognized this ambiguity when Judge Cynthia Westcott Rice wrote that while Dobbs “may modify this statement of law, no Ohio statute has been codified to extend the legal personality of frozen embryos”.

Does Ohio Constitutional Amendment Protect IVF Treatment and Medical Care?

Karen Thompson of Pregnancy Justice said the Ohio Revised Code defines an unborn human being as beginning life at fertilization, which could mean frozen embryos are considered life, not property. That, combined with the Ninth District Court of Appeal’s ruling, could limit IVF treatments and medical care, she said.

Despite this concern, some, like Thomas of the University of Akron, said the Ohio Constitution’s Freedom of Reproduction Amendment, approved by Ohio voters in 2022, should protect the right women to abortion and IVF.

“I think our new constitutional standard makes it clear that this is not life, and at most it might be the potential of life,” Thomas said. “Reproductive freedom in Ohio means you have the right to conceive, not just not have a pregnancy.”

Are there efforts in Ohio to protect access to IVF and assisted reproductive medicine providers?

A recent bill in Ohio, HB 502, would protect access to assisted reproductive medical care, including IVF, and protect providers from harm and criminal prosecution in cases of injury or death to reproductive material human.

The bill, sponsored by Reps. Beryl Piccolantonio, Democrat of Columbus, and Anita Somani, Democrat of Columbus, would not protect providers from negligence, misconduct or reckless disregard for the loss of life or property.

This bill remains in committee.

Is there a movement to grant personhood to embryos in Ohio?

In 2021, Rep. Gary Click, Republican of Fremont, introduced Ohio House Bill 704, which would grant legal personhood by design. The bill remains in committee.

Bryce Buyakie covers courts and public safety for the Beacon Journal. You can reach him by email at [email protected] or on X, formerly known as Twitter, @bryce_buyakie.