Property Rights in Children?

Whatever one’s personal views about in vitro fertilization (IVF) may be, there’s one aspect of it that lawmakers, and the public more broadly, need to be more aware of: nearly every IVF-related contract hinges on ruling out any notion that the embryo is a rights-bearing “person.” These agreements, in fact, require that one assume the living, human embryo amounts to no more than legal “property.” I’ve covered some of this in more detail elsewhere. And soon, I’ll publish another paper that will touch specifically on the property-in-man implications surrounding IVF, surrogacy, and other embryo-related arrangements. (Anthony J. Sirven, “No Property in Man: A Fading Principle,” Texas Review of Law & Politics, forthcoming Spring 2025.)

But what I want to highlight in this essay—particularly in light of the recent push for federal policy that would expand access to IVF—is that the property-related implications surrounding IVF and surrogacy do not stop at embryos held in cryogenic freezers or, for that matter, those implanted into a surrogate. These same implications extend to born, walking-around children, too.

Let me explain.

For IVF to work, all parties involved (the father, mother, and clinic) have to trust that whatever contracts they enter into over the embryos are enforceable. But that can only be true if the object of these agreements—the human embryo—isn’t a constitutional person. Otherwise, there could be no enforceable agreement to begin with—given that people can’t “own” other people, at least not without offending the Thirteenth Amendment.

For that reason, many of these arrangements outright label the embryos “marital property.” Even ones that don’t, or those that dance around the issue, still act as if human embryos are something the parties can own, allowing them to convey interests through a contract in the first place. But however worded, the core premise is that the parents, as progenitors, own their own genetic material: the embryo. Yet what tends to go unsaid is that this same presumption often stays intact even after the child is born.

One law professor (in a paper titled, “Property Rights in Children,” no less) put it this way: “The advent of in vitro fertilization has moved surrogacy contracts into a realm” that “recognize[s] a property right in children, however uncomfortable that observation may be for our society to confess.” “And while it is possible to avoid calling such a promise a transaction, or the surrogate a seller, or the recipient of the child a buyer,” he adds, “the substance of the arrangement is easily and properly characterized by these market terms,” inviting the “treatment of children as a commodity, . . . however genially described.” More to the point, IVF- and surrogacy-related agreements have led to “a generally accepted, if seldom confessed, belief that parents own their genetic offspring”: the in-vitro embryo and, later, born child.

He is right. For surrogacy agreements to be enforceable, courts must treat the objects of these contracts—the IVF-conceived children—as something less than full persons so that the parties can exercise an ownership interest in them, even after they leave the womb. A recent ruling from Oregon’s highest court made this rather explicit.

In Matter of Parentage of S.D.S. (a case I’ve covered in more depth elsewhere), a single-vote majority on the Oregon Supreme Court concluded that an egg donor could claim contractual—or, to borrow the court’s phrasing, “bargained for”—rights “to [a born child],” such as the right to visit, associate with, or “play some type of ‘mothering role’ with respect to [him].” This was so even though the majority held she was not the boy’s “legal parent.” Yet her not being a “parent,” they noted, “does not end our inquiry.” Invoking the state’s policy preferences for enforcing “surrogacy and other ART contracts,” the majority tasked the trial court with examining whether “written and unwritten” agreements that the non-parent donor alleged she entered into with the father gave her contractual rights to the child—at that time, a nine-year-old boy.

This drew pointed criticism from three dissenting colleagues. As they cautioned, “no Oregon court—before today’s majority opinion—has ever held that Oregon law allows a person to ‘contract into’ parental rights”; instead, child-custody decisions are “made by the court based on its determination of what is in the child’s best interests—not the terms of a contract or what the parties to a contract may have intended.” “As an independent source of parentage,” they added, “contract law is an awkward fit.”

That puts it mildly. What the dissenting justices were alluding to, even if in genial terms, was the implication that a born, “walking-around” child could be treated as something less than a full person: effectively, property. Oregon is not alone in that respect; another (though somewhat less recent) case out of California, C.M. v. M.C., was even more direct.

In C.M., a surrogate fought to keep custody of triplets she gave birth to, over the (contractually) intended father. She argued, in part, that she was the children’s legal “mother,” having been the one who gave birth to the three of them. At the very least, though, she urged the court to perform a “best interests of the child analysis,” as it would for any other child. And on that front, she pointed out that the agency that brokered the surrogacy arrangement never conducted a “home study” of the intended father—a fifty-year-old single man who lived in Georgia with his mother and, allegedly, pressured the surrogate to abort one child and threatened to put another up for adoption afterward. Even so, the California appellate court refused.

In its words:

M.C. claims that permitting the children of surrogates to be “placed” with intended parents based only upon the intent of the contracting parties without considering the best interests [emphasis added] of the children denies such children the consideration given to children in other contexts involving state-sponsored placement, such as adoption and marital dissolution proceedings. . . . [But if] children born to surrogates must be placed by the state using the same criteria that apply to adoptions or custody disputes [then] it would certainly affect—and perhaps eliminate—the willingness of intended parents to have children through surrogacy arrangements.

To put that into plain English: the California court admitted that it had no choice but to skip past the best-interests-of-the-child analysis, or else risk rendering surrogacy agreements unworkable altogether. It thus ignored the humanity of the already-born children, deciding who would parent them based on the cold terms of a contract instead.

These aren’t just a couple one-off cases. High courts in Wisconsin, Iowa, and Ohio have reached similar holdings and drawn similar dissenting criticisms as well. And however packaged, each arrived at the same overall conclusion: that even born children can be made the objects of bargained-for contracts. Each court, in other words, effectively treated born human beings like objects that others can own—offending the very spirit of the Reconstruction-Era Amendments. (I will expand on this latter point in the upcoming law-review article.)

For now, I believe it sufficient to caution those in the pro-life camp against joining in the march for broader IVF legislation. This is all the more so for those who consider themselves “pro-personhood.” If Congress were to pass laws endorsing, protecting, or expanding access to IVF, it would, to my knowledge, be the first time federal law has spoken on the nature of prenatal personhood—at least since Roe. And like Roe, it would once more require us all to accept the premise that unborn (and even certain classes of born) children are not “persons in the whole sense”: a sharp turn in the wrong direction.

Image by Rawf8 and licensed via Adobe Stock.