A divorced Seattle-area couple’s battle over the fate of frozen embryos could establish a precedent that challenges abortion rights, claim the ex-wife’s defenders.
In its decision earlier this year, the Washington State Supreme Court avoided a “philosophical discussion” over whether or not embryos are “children,” but this is precisely what lawyers for Becky Litowitz want to establish in a case they believe could ultimately be decided by the U.S. Supreme Court.
In the United States, more than 190,000 embryos lie in legal limbo, awaiting determination of their fate, notes Richard Ackerman, lead attorney for Becky Litowitz and litigation counsel for the non-profit United States Justice Foundation.
“Our position is that human embryos are indeed a sanctified form of human life and need to be given the respect that goes to human life,” said Ackerman, arguing that his view is consistent with cases in California – where the Litowitz embryos are kept – that recognize embryos to be a “special interest.”
Ackerman contends there is a conflict between California law and the Washington state high court’s assumption that the embryos are property – a conflict that should be addressed by the U.S. Supreme Court because it pertains to parental rights.
While pro-life groups will be watching this case, a U.S. high-court ruling in favor of Becky Litowitz – who has no biological connection to the embryos – also could advance the cause of homosexual advocacy groups that want to establish adoption rights for same-sex couples, Ackerman acknowledged.
Courts in other states have ruled on disputes over custody of embryos, but this case is unique. In previous instances, the embryos had genetic material from both parties. But when Becky and David Litowitz were still married, they formed a contract with a lab at Loma Linda University in California to fertilize the eggs of a donor with the sperm of Mr. Litowitz.
Now David Litowitz, against the wishes of his ex-wife, wants the two remaining embryos to be destroyed.
Ackerman is seeking a temporary restraining order and preliminary injunction before the San Bernardino County Superior Court this week to ensure that the embryos are maintained as the case proceeds.
The Washington State Supreme Court, in June, ruled that the embryos should be destroyed, overturning a lower-court ruling that awarded David Litowitz custody of the fertilized eggs. The high court, avoiding issues concerning the essential nature of the embryos, based its decision on a 1996 contract the couple signed with Loma Linda’s Center for Fertility and In Vitro Fertilization. The Litowitzes’ agreement required the embryos to be thawed out after five years unless they asked for them to be frozen longer.
Defenders of Becky Litowitz argued that the contract did not apply in this case because it pertained only to decisions the couple made together. The contract’s solution for any potential dispute was to allow a court to decide, noted the lawyers, who insist that was carried out. In the couple’s 1998 divorce case, a Pierce County Superior Court judge awarded custody of the embryos to David Litowitz, citing “best interest of the child.” Mr. Litowitz promised to put the embryos up for adoption, not destroy them, his former wife’s defenders argued.
The Loma Linda clinic, part of a Seventh-Day Adventist Church institution, says it will not destroy the embryos without consent of both David and Becky Litowitz.
‘Property doesn’t have rights’
In his defense of the legal rights of human embryos in California, Ackerman cites a complex decision, Moore v. Regents of the University of California, in which “it appears that human embryos cannot be considered as ‘property’ or an ‘economic interest.'”
Ackerman says another issue in the Litowitz case is whether or not a child “has standing to assert constitutional rights” regarding an unborn sibling who is biologically related. The child in this instance is the Litowitzes’ 5-year-old girl, who was born to a surrogate mother implanted with three embryos that were inseminated at the same time as the two named in the dispute.
A lawyer for Becky Litowitz, Scott Lively, head of the Pro-Family Law Center near Sacramento, argues that the court appointment of David Litowitz as guardian of the embryos was an implicit acknowledgement that they are human beings.
“They don’t appoint a ‘guardian ad litem’ for property,” he pointed out. “Property doesn’t have rights, people have rights.”
Lively believes that recognition of the embryos’ right to life “would go a long way to advancing the pro-life position” in the courts.
“It’s a decision that, just in practical terms, has to be made,” he said.
In the landmark 1973 Roe v. Wade decision, the U.S. Supreme Court did acknowledge a right to life for the fetus, but weighed that against the competing interest of the “woman’s right to not be inconvenienced,” Lively said.
Critics of the decision say the court created a “right to privacy” for pregnant women that does not exist in the Constitution.
The high court made the case that you can’t determine when life begins, said Lively, “therefore we’re going to allow the woman to decide whether or not to kill the child.”
“That is the reverse of what should have taken place,” he asserted. “The court should have said, ‘We don’t know when life begins, and because life is so important, we must assume that life begins at conception, because the benefit of the doubt must go to the side of life and not the side of inconvenience.'”
“The core issue of Roe v. Wade at the time was that there was no consensus as to whether these fetuses were human beings with rights,” said McConchie, director of media and policy relations.
Realm of the ‘macabre’
Lively acknowledges that the case potentially has far-reaching implications that could support his pro-life position while advancing homosexual rights, which he opposes.
“The bottom line is we have two unborn children in an embryonic state, and we must do whatever we can to preserve their lives,” he said.
Ackerman explained how homosexual couples could benefit from this case.
“If you take the principle that you don’t need to have a biological tie to a child to have an interest in it, same-sex couples are going to be thrilled to death about this,” he said, “because they would take on the same status that biological or adoptive parents have.”
Many state legislatures have not dealt with issues related to same-sex adoption, he noted.
“This whole arena of moving procreation out of the womb and into the laboratory is a bit macabre anyway, going from the natural to the unnatural increasingly,” said Lively. “That’s just not healthy, but here we are stuck with the reality of two children in embryonic cryogenic suspension.”
“So, we’d like to see a result in which the right to life of the children is recognized but the homosexual agenda is not advanced,” Lively said.
McConchie said a related issue, with no precedent in law, is patenting embryos.
Can biotech companies clone human embryos, or create them, and patent their genetic makeup?
“If they were to garner some sort of therapy, using the embryonic stem cells or something of that nature, that would be the immediate question,” McConchie said.
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