Saturday Musings: Who Is Entitled To The Couple’s Jointly-Created DNA? Who Is Responsible? 21st Century Law Reflections — When Couples Split

I’ve seen a flurry of articles — mostly about lawsuits — on what happens when modern couples split — but have DNA stored, jointly. So I’ve decided (over coffee and a banana, and fresh OJ) this fits with Merck’s legacy Schering-Plough/Organon reproductive medicines and family planning lines of business (or. . . it is at least as good an excuse as any, to write on the topic).

Let’s start with the basics: while every state presumes that married male-female couples are both considered the parents of any child born into the marriage, every state now allows any outsider to the marriage (upon competent evidence) to file a suit and present that evidence — to establish that the child is “made up of/from the DNA” of that stranger to the marriage. Absent a donor agreement (which would nullify these parental rights), or surrogacy contract — any person’s DNA — found to be present in a child, to 95 per cent probability of parenthood, would be enough to allow visitation, and would correlatively allow the married couple to seek support payments, and perhaps even allow the stranger to enforce joint custody arrangements (in every state in the Union, if memory serves). This is true, regardless of whether there is a separate, conflicting, contemporaneous marriage. That’s the boring, straight black letter law, here. [And so, many traditionalists will need to expand their views of what makes a collectively shared DNA group. . . a blendedfamily“, in my opinion.] Now let’s take a look at a few of the variations, all of rather recent vintage:

In a high profile Arizona case, two WNBA players (apparently using a sperm donor, and a written donor agreement) to get pregnant — while married — are splitting, at the insistence of the non-pregnant spouse. The non-pregnant soon to be ex-spouse wants to avoid the implications of having a child jointly, by annulling the marriage. The pregnant spouse intends to carry to term, and seek support. This is so, even though the spouse she will seek support from has no DNA in common with the baby-to-be, nor any adoption papers, nor any agreement to jointly raise the donor’s DNA. That one will make new law, for certain.

In another case, a female MD who, while fighting cancer, along with her then-boyfriend, long ago banked fully fertilized eggs, in cryo-storage (i.e., DNA from both of them — an embryo), in the hope she’d survive the cancer — and upon her return to health, wanted to have a surrogate carry that embryo to term. Her efforts were held in limbo, until yesterday, when a judge ruled in her favor — basing his ruling on the fact that a written agreement exists, which to allows her to proceed, in his view. The ex-boyfriend had sued in Chicago — to keep her from using their three fertilized eggs — for just the purpose described in the agreement. He says the storage facility agreed in writing not to do anything with the embryos without both of the “parents'” consent. And he’s not. . . consenting. But of course, the storage facility’s written agreement meant only that it could not sell the embryos — to a third party stranger.

Finally, a female actor/model wants to prevent her ex-fiancé’s attempt to create a jointly-shared DNA life, from an embryo they banked, while together — and so, she has waged a long-running legal battle to prevent him from implanting the joint DNA into a surrogate, post the relationship. So, onward it goes.

From the Gray Lady’s coverage of the WNBA case, then — a bit:

. . . .In a petition for annulment filed June 5, Ms. Griner, a center for the Women’s National Basketball Association’s Phoenix Mercury, said their marriage of less than a month was “void based on fraud and duress. . . .” Ms. Johnson, the court papers said, pressured Ms. Griner into marrying her with “threatening statements. . . .”


Ms. Griner’s divorce filing in Maricopa County Superior Court in Phoenix came the day after Ms. Johnson announced on Instagram that she was pregnant — with a photo of a cake shaped like a bun going into an oven. . . .

And, from the actor/model’s case:

. . . .Two people fall in love and want to have children. For whatever reason, they try in vitro fertilization, which successfully results in embryos ready to be brought to term at their discretion. But they fall out of love. One person still wants those embryos to become children, and the other person does not.


This very personal battle has in recent weeks become public for the actor Sofia Vergara and her ex-fiance, Nick Loeb, as he claimed in tabloid newspapers that she wanted to destroy frozen embryos they had created. On Thursday, he brought this battle to the New York Times, which ran his editorial about why their two embryos “have a right to live. . . .”

I may offer more on this, as these — and other cases — progress. [Graphic/image, above right, derived from a Wiki-Commons photo of a sculpture. Fair use claimed.] Onward — to a cool, clear, fun Saturday!

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