The only thing worse than forcing a man to become a father is not forcing him to become a father. “Shotgun fatherhood” may seem absurd, but it’s more sensible than it sounds – after all, this legal principle only applies in situations where there are frozen embryos, no prior agreement about what to do with them, and they are the woman’s last chance to have a genetic child. Throwing that last chance away is seen by the courts as more harmful than creating a child the man doesn’t want anything to do with.

Forced fatherhood was recently ordered, in a 2-1 split, by the Arizona Court of Appeal in the notorious embryo battle Terrell v. Torres. Interestingly, the dissenting judge, Justice Maria Cruz, pointed out that it might not be so easy for this unwilling father to ignore his compulsory offspring. “There exists a high likelihood,” she warned, “that any children, potentially seven or more of them, born of the embryos would be known to Mr. Terrell’s family and friends, forcing him to choose between accepting parenthood or crassly and openly avoiding it.”

Even if he crassly and openly avoids it, his child(ren) might track him down anyway, thanks to DNA-testing companies like Ancestry and 23andMe. These kinds of websites are increasingly being used by the offspring of anonymous donors to find each other, and also locate their biological parent(s.) For example, as this blog previously reported, a man named Aaron Long of Seattle donated an enormous quantity of sperm in the 1990s, for $40 a pop, and twenty years later his progeny began searching. So far, six children have surfaced. One of them, an 11-year-old daughter, along with her biological mother, have actually moved in with him.

Nevertheless, forced fatherhood – in “last-chance” cases – is becoming permissible in most jurisdictions in the United States. With no Arizona jurisprudence yet on point, the Terrell court turned to out-of-state case law, and identified three approaches adopted in most of the U.S. starting in the early 1990s: #1 the “contract” approach, #2 the “balancing” approach, and #3 the “contemporaneous mutual consent” approach. In a nutshell, said the court, the best thing to do is start with #1; if that doesn’t work, go to #2; however, #3 should be avoided because it’s open to abuse and they only use it in Iowa.

Abuse is a possibility with #3 because under this approach no transfer, release, disposition, or use of embryos can occur without contemporaneous mutual consent, i.e., the signed authorization of both donors. If a stalemate results, the status quo is maintained. This means each progenitor has a powerful bargaining chip at a time when they might very well be tempted to punish their soon-to-be ex-spouse, or hold hostage their ex-partner’s ability to have a biological child. Therefore, the Terrell majority declared: “we decline to give one party a blanket veto, and accordingly reject this approach.”

So, the starting point is the contract approach. This basically says that an agreement between progenitors, or gamete donors, about the disposition of embryos in the event something bad happens – such as the death of one or more of the parties, divorce, financial reversals, or abandonment of the frozen storage program – is generally presumed to be valid and binding, and will be enforced. This is seen as a wise approach because it leaves deeply personal decisions about reproductive choices in the hands of the parties; it minimizes misunderstandings and maximizes procreative liberty; and it provides an opportunity for the parties to carefully reflect on their different options.

Drawbacks to the contract approach include the fact that there are numerous uncertainties inherent in the in vitro fertilization (IVF) process, such as the possibility of keeping embryos viable indefinitely, allowing time for minds, and circumstances, to change. Another concern is that IVF agreements about embryo disposition are often part of an “informed consent” signed with the fertility clinic, and these consents usually include unpleasant statements about the risks of IVF, which is “anxiety-producing information a patient might be inclined to resist or ignore.” (Courts have addressed these concerns by permitting parties to subsequently jointly modify their initial agreement.)

In the Terrell case, the contract approach didn’t solve the problem – the contract they signed merely stated that if the parties couldn’t agree, then they would let a court decide. Therefore the balancing approach came into play. The goal of this approach is to balance competing interests, and balance the “relative burdens” that would be imposed. Ordinarily, the party wishing to avoid procreation wins. But in last chance cases, where the other party has no reasonable possibility of achieving genetic parenthood, forced fatherhood can save the day. Which is what happened in Terrell.

The Terrell majority were quite confident in their decision, observing that “if the factual underpinnings here do not support Torres’ claim to the embryos, then there is likely no factual scenario which would result in the award of the embryos to one party over the objection of the other.” After all, they observed, the sole purpose of IVF was for Ms. Torres to preserve her ability to have biological offspring. She started immediately after receiving a cancer diagnosis, because the cancer treatment would likely render her infertile. She then located a “ready and willing” donor, who was not Mr. Terrell. It was only after hearing about this other donor that Mr. Terrell piped up and offered his sperm instead. Then, after the embryos were created, he backed out. This change of heart certainly does not create much pathos for Mr. Terrell, to say the least! “Without Terrell’s intervention,” chastised the majority, “Torres would likely have viable cryogenically preserved embryos ready for implantation, as she planned.”

The court noted that Mr. Terrell could well be legally responsible to pay child support. True, Ms. Torres “waived” her child support claim, but such waivers are generally unenforceable because support is the right of the child, not the parent, and therefore it cannot be bargained away. (Note, however, that some U.S. states have passed laws saying a progenitor will not be liable for child support if an embryo is implanted post-divorce, contrary to their wishes.)

There are, as yet, no cases where forced motherhood has been ordered. Indeed, it appears no man has ever even claimed in court that an existing embryo represents his last chance for a genetic child, and therefore it should be made into a baby over the objections of the biological mother. True, men have litigated to have an embryo destroyed, or donated, or brought to term if the biological mother is Sofia Vergara, but none of these claims involve a man who has become infertile.

Who knows what the future holds?

For advice on family law issues and fertility law issues, contact Shirley Levitan.