Frozen Embryos, Male Consent, and Masculinities

Abstract

Picture two men facing the possibility of unwanted fatherhood. One man agreed to go through in vitro fertilization with his partner, but years later has changed his mind. Despite the fact that the embryos created through IVF are his partner’s last chance to be a genetic parent, a court allows him to block her use of the embryos.

By contrast, another couple’s sexual relationship broke the law. The woman was a legal adult and her partner was a child, under the age of eighteen. Their encounter was thus statutory rape. Her crime led to pregnancy, and after she gave birth, she sued the teenager for child support. Despite his protest that he did not consent to the sexual activity that led to the child’s birth, the court affirms the child support order.

As a practical matter, this inconsistency in treatment of unwanted fatherhood may instinctively make sense, applying two different rules for two very different contexts. A deeper examination of the cases, however, reveals much more going on. This Article uses the frame of masculinities theories to dive further into the inconsistency and uncovers two groundbreaking implications that stretch far beyond the specific circumstances. First, the varying treatment of embryo disposition disputes and the characterization of male victims of statutory rape have one constant: a dismissal and rejection of men’s emotions. Second, exploring the inconsistent treatment of men’s consent to become fathers in sexual reproduction versus stored embryos reveals a clear rejection by courts of the personhood concept that embryos are human life. These revelations inform not only how embryo disposition disputes should be resolved, but also fetal personhood and family law’s treatment of fathers.

Keywords: masculinities, feminist legal theory, family law, criminal law, assisted reproductive technologies