From (Moral) Status (Of the Frozen Embryo) To (Relational) Contract and Back Again to (Relational Moral) Status

XX INDIANA HEALTH LAW REVIEW, Forthcoming

55 Pages Posted: 7 Oct 2022

See all articles by Yehezkel Margalit

Yehezkel Margalit

Netanya Academic College; New York University School of Law

Date Written: October 5, 2022

Abstract

The already existing hundreds of thousands of unused frozen embryos coupled with the skyrocketing rate of divorce raise numerous moral, legal, social, and religious dilemmas. Among the most daunting problems are the moral and legal status of the frozen embryo; what should its fate be in the event of conflicts between the progenitors; and whether contractual regulation of frozen embryos is valid and enforceable. This article applies relational ethics, drawing on, inter alia, the relational contract to resolve these intertwined dilemmas. Applying this theory, I will challenge the conventional dichotomous conceptualization of the frozen embryo as either a person or a nonperson. Rather, I show that its legal and moral status should be determined as a derivative of the desired or undesired relationship between the progenitors, as articulated in a mandatory disposition agreement. The progenitor who is interested in using the frozen embryo and bringing the child into the world defines it as a person, whereas the progenitor who opposes its usage determines its status as a nonperson – an object. Consequently, I argue that in the event of an explicit disposition agreement, the contract should govern whether the frozen embryo will be used, discarded, adopted and/or earmarked for research. The relational contract supplies us with adequate contractual devices to address any problem arising from changed circumstances or changes of heart. In those cases where there is no explicit disposition agreement, or when the explicit agreement does not stipulate what should be done with the embryos under special or unanticipated circumstances, I contend that the party interested in using the embryo should prevail. The recalcitrant progenitor, who is not interested in using the embryo and becoming a parent, should not be subject to a legal determination of parental status and its attendant responsibilities.

Keywords: Family law, contract law, frozen embryo, legal status, relational ethics, relational contract, disposition agreement, contractual regulation, abortion

Suggested Citation

Margalit, Yehezkel, From (Moral) Status (Of the Frozen Embryo) To (Relational) Contract and Back Again to (Relational Moral) Status (October 5, 2022). XX INDIANA HEALTH LAW REVIEW, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4239006 or http://dx.doi.org/10.2139/ssrn.4239006

Yehezkel Margalit (Contact Author)

Netanya Academic College ( email )

Netanya

New York University School of Law ( email )

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