The pro-life and men’s rights movements have a burning question: if women have a right to choose when to have children, men’s rights say, shouldn’t men as well?
Both movements want a hero, and they have finally found one in Nick Loeb, the former fiance of Sofia Vergara. Loeb is currently seeking custody over their pre-embryos, despite a legal agreement that they could only be implanted and brought to term with both parties’ consent.
Loeb’s decision to take his custody battle public on the pages of the New York Times told a very disturbing story to reproductive justice activists – one that is about control.
Planned Parenthood president Cecile Richards told me over email: “What’s troubling about [Loeb’s op-ed] is that it seems to be a kind of public shaming – bordering on bullying – in order to force someone to have children against her will. These are deeply personal decisions for women, and they should be respected.”
It’s because of how deeply personal and complicated issues of IVF and parenthood are that legal agreements are commonplace.
Dr Sigal Klipstein, a reproductive endocrinologist and chair of the ACOG Ethics Committee, told me that disputes like this are generally resolved by the courts using the “right to ‘no’” standard. “The person who says ‘no’ will win – you can’t parent against your will,” she said.
Even without a legal agreement, the medical community largely agrees that pre-embryos should only be implanted with the consent of both donors. The American Medical Association ethical guidelines say that embryos “should not be available for use by either provider or changed from their frozen state without the consent of both providers.”
The guidelines note that even if a parent was to be legally freed from parental obligations, “the absence of a legal duty does not eliminate the moral duty many would feel toward any genetic offspring.”
In other words: most people would feel some sort of obligation, and likely love, for genetic children brought into the world. So by claiming custody of the pre-embryos and bringing them to term, Loeb would be forcing Vergara into parenthood, and likely a life-long relationship with him.
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To Risa Levine, a lawyer and board member of the infertility association Resolve, that possible genetic pull is beside the point, and something both parties should have considered before they created the pre-embryos.
When Levine was married, she went through many – “double digits,” she tells me – fertility treatments in order to create embryos for implantation with her then-husband. Mid-cycle, her husband told her stop; he was worried about financial problems. “He threatened divorce,” Levine says. But, she says, her husband promised they would resume implantation. They never did.
Soon after, Levine’s husband asked for a divorce, and wanted to stop Levine from implanting the pre-embryos for fear of being responsible for child support, he told a court.
Levine says the child support argument was just an excuse, but her ex-husband won over the judge. “The embryos were donated to research and it is something that I live with every day,” she says. “It’s the first thing I think of every single morning when I wake up.”
But while Levine is empathetic to Loeb’s argument that the IVF process clearly shows that the intent was to parent, “he’s not the best representative for this issue.” Levine points out that, legally, he has a very weak case.
For example, Loeb claims his religious beliefs are partly behind the custody battle: “Does one person’s desire to avoid biological parenthood … outweigh another’s religious beliefs in the sanctity of life and desire to be a parent?” But if Loeb is Catholic, she asks, why go through with IVF at all?
Eleanor Robertson pointed out the same contradiction in The Guardian:
The church specifically forbids in-vitro fertilisation, and all assisted reproductive technologies that involve conception that takes place outside of sexual intercourse within marriage, on the grounds that they are ‘contrary to the dignity and equality that must be common to parents and children’.
Many pro-life proponents are quiet on the ethics of reproductive technology, because alienating infertile couples does not make for good political strategy. But the doctrine of anti-choice organizations is quite clear: the American Life League derides in-vitro fertilization as “a practice that makes babies without God,” for example, and the Pro-Life Action League has even protested IVF clinic openings.
This was not the first time Loeb found himself unable to control the reproductive rights of his former partner, either. “When I was in my 20s, I had a girlfriend who had an abortion, and the decision was entirely out of my hands,” he writes.
This feeling – “women are controlling everything” – seems to be behind many men’s rights complaints.
In 2006, for example, an organization calling themselves the National Center for Men filed a suit on behalf of 25 year-old Matt Dubay, a man who didn’t want to pay child support for a baby he “never intended to bring into the world.” Dubay told a reporter at the time: “We have no choice. We have to live with whatever the women decide.”
It’s a feeling of powerlessness that, I believe, many men are not accustomed to. Women, on the other hand, know all too well what it feels like to have your reproductive choices limited, judged and controlled.
For cases like Loeb’s and Levine’s, there are no clear legal answers. Allowing Loeb to obtain “custody” of pre-embryos in the face of the contract he signed seems unlikely and unfair. That said, people like Levine point out that there needs to be new legal ground carved out alongside new medical practices. “The laws need to recognize that embryos are neither property nor are they life – they are the potential for life, and they need their own category,” she tells me.
For Klipstein, the answer is more clear cut: “You can’t have someone use your genetic material against your will. This isn’t a men’s rights issue,” she tells me, “because he [Loeb] can parent, can use his sperm. Why should she allow him to have babies with her genetic material when his genetic material is just fine?”
Ultimately, Klipstein points out, laws around custody of pre-embryos may give men more rights than in traditional pregnancies. “When a woman is pregnant, he doesn’t have a choice because of the implications his choice has on a woman’s reproductive liberties. None of that comes into play when you have embryos outside of the body.”
Will reproductive technology give men the freedom they’ve always said to have wanted? Or will they just use it as an excuse to further control the women in their lives?
