Family law attorney John Mayoue: Custody of frozen embryos

John C. Mayoue, a partner in the firm of Warner, Mayoue & Bates, P.C., specializes in the areas of family and divorce law, and has written many books and articles on the subject, including "Competing Interests in Family Law: Legal Rights and Duties of Third Parties, Spouses and Significant Others." Mayoue joined the CNN.com chat room to discuss the New Jersey high court ruling in a frozen embryo custody case.

CNN: How does one decide in a case like the one in New Jersey who has custody of the embryos? What are the arguments for each side?

MORE STORIES N.J. high court rules in frozen embryo case     RESOURCES J.B. v. M.B. and C.C. (N.J. Supreme Court)  From FindLaw Message Board: Human embryo use

JOHN C. MAYOUE: Well, it's very profound and troubling. The arguments have to do with the right to procreate, the right to create or not create a family. Both arguments are derived from the 14th Amendment to the United States Constitution, and these are basically rights of privacy. We in this country have both the right to create a family and the right not to. In this case, the court ruled in favor of the party who did not wish to procreate, in this case, the woman, who is the wife. There are numerous other arguments that go into this analysis, both legal and moral. One of the more profound questions, of course: is what are embryos? Which then leads to the question: do we, as private married or unmarried couples, have the right to agree as to how they are to be disposed.

CHAT PARTICIPANT: Is custody the right legal term to use in this case, or is this done to stay away from property right terms?

MAYOUE: That's a fascinating and very astute question. It goes back to the definition of an embryo or pre-embryo, or going even further back into terminology, zygotes and eggs. It would be a custody question in a state like Louisiana where embryos are defined as human life with the term "judicial persons." In the sense of custody, as we think of child custody, that term would be appropriate in Louisiana. In the state of Virginia, embryos are considered property, and we don't tend to use the term "custody" when dividing property, particularly in a divorce.

CNN: What ethical questions does this case bring up?

MAYOUE: The ethical questions, of course, are so profound because we want to know everything, from what we consider embryos to what right we have to make use of them. In one sense, persons considered embryos as either a form of life, or they've been called something as a potentiality for life. And then the moral questions are very deep as to how much control private citizens have over the future use of another's life. Other questions that come to mind, in the context of persons wishing to dispose, which is a somewhat offensive term, of embryos. Should we as a society require that those embryos be put to a public use, such as stem cell research, or a use such as their donation to infertile couples? Those questions, of course, are very deep. You get into other questions, such as should a person -- and obviously it takes two to create an embryo -- should a person who has been a part of this creation have no voice in the future use of the embryo. For example, if I am the sperm donor, should a biological child be born from my sperm over my objection?

CHAT PARTICIPANT: Perhaps we need to require a pre-conceptual agreement, like a pre-nuptial, agreement to say who owns the embryos in case of divorce.

MAYOUE: Right. You see, basically that's the situation we've been faced with, whenever someone goes to a clinic. When someone goes to an In Vitro Fertilization clinic, they basically require you to sign a contract with them as to how the embryos will be used and disposed of. People can enter into contracts between one another at any juncture prior to the marriage, prior to going to the IVF clinic, after going to the IVF clinic or in the context of a divorce. I do agree that the wisest thing to do would be to enter into the contract pre-marriage. But often times, people don't know pre-marriage whether such an issue will arise, whether one party or the other is infertile or whether they'll try an in vitro procedure. Just to make it a little more complex, then the question becomes, should we as a society to allow these persons to enter into any kind of contract they wish, concerning the use and disposition of embryos.

CHAT PARTICIPANT: Do you see this case going to the U.S. Supreme Court.

MAYOUE: I don't. I think this case is somewhat fact specific. You have a case where the parties did not have a written agreement between each other regarding the use of the embryos and they did have a contract with the clinic that basically said that the court could decide what would happen to the embryos if the parties could not agree. In this case, the parties did not agree. The husband, who was fertile, did not wish to have the embryos destroyed and did want them to be donated. The wife disagreed, and she prevailed. I do think, however, that this is one of the types of issues that will be raging in state courts throughout the country.

CHAT PARTICIPANT: Do you think the high courts decision may set a precedent for future issues that may arise as technology progresses, such as cloning, or genetically engineered babies?

MAYOUE: Again, an excellent question because this decision is on the precipice of those issues. I do think with the incredible growth of science and technology that the law has lagged very seriously behind in terms of our abilities to have meaningful precedent in these areas.

CNN: Do you have any final thoughts to share with us?

MAYOUE: I would be careful to read too much into this decision because I think the states will be fundamentally divided on the use of embryos, until there are more either federal guidelines, or more guidelines from the states' supreme courts or legislatures.

CNN: Thank you for joining us today.

MAYOUE: Thank you!

MAYOUE joined the chat room via telephone from Georgia and CNN.com provided a typist. The above is an edited transcript of the interview on Tuesday, August 14, 2001 at 1 p.m. EDT.