Family Law

This Isn't A Law School Hypothetical: Should Grandparents Use Their Deceased Children’s Embryos To Have A Grandchild?

Perhaps 'prior-to-death specific consent' should be given before any deceased person’s gametes are used for conception.

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Recently, you may have seen news stories about a baby being born after a long and legally complicated journey. The story begins with a married Chinese couple, Shen Jie and Liu Xi.  The couple of China had big hopes of starting a family. But after not being able to conceive the old-fashioned way, they sought the assistance of a fertility doctor. As part of the process, they went through in vitro fertilization (IVF) to have embryos created, and they were scheduled to go through an embryo transfer. But five days before the March 2013 scheduled transfer, the couple was tragically killed in a car accident.

Both Shen and Liu were only children. Their heartbroken parents — who had hoped to become four grandparents after the transfer had been completed — decided to join together and pick up where the couple had left off. But obviously, that wasn’t going to be an easy process.

Obstacle 1: Access To The Embryos. Lacking clear legal guidance or precedent, the Nanjing hospital where the embryos were cryogenically preserved was unwilling to release the embryos to either couple. So the grandparents found an attorney, and the attorney recommended that they sue each other for custody of the embryos, but advised them that suing the hospital directly would be “too risky.” In the first trial, the court in Yixing, China, added the hospital as a third party, and ruled that “the fertilized embryo is a special thing that has the potential to develop into life, contains the characteristics of future life, and cannot be transferred or inherited as a general thing, so it cannot be the subject to inheritance.”  (This was Google-translated from a Chinese language article on the case, so hopefully this is an accurate quote from the Yixing court.)

The ruling contrasts with some American cases that have deliberately gone the other direction. In an infamous Texas case, a probate court ruled that the surviving two-year-old toddler of murdered parents was the rightful heir to inherit 11 cryopreserved embryos (his potential siblings), and that he alone could determine their fate when he turned 18.

Despite the initial loss, the grandparents did not give up. In a second trial, the Wuxi City Intermediate Court took “full account of the ethical and emotional factors” in issuing its opinion. The court noted that the embryos left behind were the “only carriers of the bloodline of the two families, carrying the grief, spiritual comfort, emotional comfort and other personal interests.” So the court ruled that the grandparents should determine the future of the embryos.

Obstacle 2: Surrogacy Is Illegal In China. Even with the win from the second court, another fundamental obstacle stood in the way of the hopeful grandparents. Like in many other countries, surrogacy is illegal in China. So even though they had the right to the embryos, the parents needed to look for other countries where surrogacy is permitted. The grandparents were wary of surrogacy agencies, having been duped early on in their four-year journey by organizations claiming they could help, and then disappearing with their money or making plans to make their story very public to raise money. Eventually, though, the grandparents chose a Laotian surrogacy agency to assist them.

Obstacle 3: Transportation. Forget the big issues like court battles and finding an international surrogacy agency. The grandparents even had to sweat the little details. Like logistics, and specifically how to get the embryos from China to Laos. The grandparents couldn’t find an airline that was willing to admit their thermos-sized liquid nitrogen canister — which contained the frozen embryos — as a passenger. Not even in first class. So the embryos had to be driven all the way from China to Laos.

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Obstacle 4: Citizenship. But if the baby were born in Laos to a Laotian surrogate, questions of appropriate citizenship would immediately arise and travel back to China could be difficult. So to assist with establishing the baby’s Chinese citizenship, the grandparents arranged for the Laotian surrogate to travel to China on a tourist visa for the birth. In December 2017, after all of these steps, a baby boy they named Tientien (“sweet”) was born. Of course, even after the birth, the legal complications weren’t over. With no living Chinese parents, the grandparents had to each go through DNA testing to establish their genetic relationship to the child for citizenship purposes, as well as to prove they were entitled to custody.

Obstacle 5. Disclosure. This was less of a legal concern, but an issue nonetheless. What should the grandparents tell the child, and when? Interestingly, in one article, one of the grandparents is quoted as saying that he plans to explain to the child about his sad conception story eventually, but until that time, the grandparents will tell Tientien that his parents are just traveling overseas. (And, I guess, without access to Skype or wechat.) That seems like a plan unlikely to succeed.

While the long journey in this case sounds extreme, I suspect that the background factual pattern is not as unique as many people think. The uniqueness here, however, is the persistence of these individuals in the face of so many obstacles and legal uncertainty. Some will suggest that it shouldn’t be this hard to bring a life into the world. Others will suggest that it should be impossible to conceive a life without either of the baby’s parents being alive.

It’s certainly a gray area that countries should put some serious thought into, as assisted reproductive technology continues to be more prevalent, and these sad situations arise. I have long advocated that a “prior-to-death specific consent” should be given before any deceased person’s gametes are used for conception. But consent is just one of a multitude of issues in these cases, all of which deserve careful deliberation.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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