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Couples Clash Over Frozen Embryo Custody

CLAYTON, Mo. (CN) - A Missouri couple has traded lawsuits with a California couple in a case that tests the bounds of child custody law. The couples are fighting over control of two frozen embryos stored in a California fertility clinic. The case raises ethical questions over the definition of family relationships and the word used to describe the transfer of embryos: adoption or donation.

Edward and Kerry Lambert, of Pleasanton, Calif., filed a lawsuit in Alameda County Superior Court to secure custody of embryos they had given Missouri couple Jen and Patrick McLaughlin.

The embryos in dispute were created by the Lamberts, with Edward's sperm and an anonymous donor's egg. After the birth of their son, the Lamberts were left with four frozen embryos that they decided to give to the McLaughlins. The Lamberts say the other couple breached their contract by not returning the unused embryos after the McLaughlins gave birth to twins with the first two.

The Lamberts claim they do not want the remaining embryos implanted in Jen McLaughlin because of her violation of the contract and her "recent behavior in connection with the two embryos."

The McLaughlins fought back with a lawsuit in St. Louis County Circuit Court, claiming Jen's interests in "her unborn children" and the embryos' interest in their siblings "is of such uniqueness" to give the McLaughlins legal right to the embryos.


The embryo adoption agreement contains a stipulation that any unused embryos could revert back to the Lamberts after one year, should the couple so choose.

But the McLaughlins' attorney, Albert Watkins, challenges the validity of the provision. He said the contract is a glorified form contract, written up years earlier by an attorney at the urging of the Catholic Archdiocese.

At the time, Catholicism was trying to help its followers explore the new technology of in vitro fertilization, Watkins said. But the technology was not foolproof. Watkins said dozens of eggs were frozen and up to 12 to 14 eggs were implanted in a woman at once, often causing traumatic multiple miscarriages.

"There would be women who would go through 12 to 14 miscarriages in the span of a day or two and after that horrible experience, they would say 'I'm not going through this again,'" Watkins said. "Then you would have all these frozen embryos in limbo. So the Catholic Church included this inversion paragraph in the contract."

But technology improved, resulting in Jen McLaughlin getting pregnant and giving birth to twins on the first attempt.

Jen said she promised the Lamberts to "do whatever it took to give those embryos the best chance to be born. I've done that to the best of my abilities."

She said she would like to do the same for the remaining embryos, but needs time to recover from giving birth and to allow her growing family to adjust to the new arrivals.

The twins made seven kids for the McLaughlins; the first five were adopted. The couple cited family togetherness as a major reason they want to keep the remaining embryos.

"This is not about me," Jen said. "If I wanted a frozen embryo, there are three clinics available immediately. The issue is my family. It's about my children and protecting them."



Watkins is critical of the Lamberts' suit. He compares it to an interpleader action, settling a dispute over property -- not human lives.

"This isn't a sack of tacos that you pick up through a drive-thru at Jack-in-the-Box, bring to a party and you bring the rest home," Watkins said. "These are siblings, two of which are already born."

Jen McLaughlin said she wasn't aware of the Lamberts' intentions to market the remaining embryos to other couples until she received a Dec. 9, 2009 email from Kerry Lambert announcing her intentions. The email came a full two months before the contract with the McLaughlins expired. It included forwarded messages between the Lamberts and the new family, and stated that the new family had spent a week with them this summer and that they lived within seven hours of the McLaughlins so the siblings could possibly grow up together.

"I was stunned to find this out," Jen McLaughlin said. "My intention was that we wouldn't make a final decision until the first two were born."

The twins were born on Jan. 8 of this year. McLaughlin said she immediately sent Kerry Lambert an email stating her position on the embryos, and the two discussed it on the phone that day.

Later that evening, McLaughlin said she received another email from Kerry. The email was a forward of a chain of emails between the Lamberts and the new prospective family, which included information about the family and pictures.

So why did the deal go sour?

The Lamberts' attorney, Jed Somit, of Oakland, Calif., refused to comment.

"I can only speculate as to the reasons behind the actions of the Lamberts," Watkins said. "It is my opinion that those actions are not in the best interests of the kids."

Jen McLaughlin said she couldn't explain it, either.

"It makes no sense," she said. Kerry Lambert "is a social worker by trade. She goes to court on behalf of kids and I'm assuming that when she goes, she fights to keep siblings together. ... She's an adoptee herself, so she knows what its like" to be separated from family, Jen said.


The court will not have to decide when life begins in this case. Watkins said the point is moot, because both sides agree that the frozen embryos are living beings.

Instead, Watkins said the court will have to decide whether the rights of siblings to be together outweigh the contract's wording.

"They (the frozen embryos) have a right to their siblings and their siblings have a right to them and their mother and father have a right to them," Watkins said. "Those provisions must take precedent over a form doctrine.

"This isn't a situation where the eggs lie in limbo, but it's a situation where they just haven't been used yet because of scientific progress."

Jen McLaughlin has an even deeper fear.

The second email chain Kerry Lambert sent her on Dec. 9 contained personal information about the new family, including medical information about the prospective mother. After researching the mother's medical condition online, Jen believes that the woman would likely miscarry the embryos.

"I don't believe she can carry to full term," she said. "I sent all of the medical information to the (Lamberts). I copied all of the information I found to the email and included links to the medical sites where I found it.

"I told (the Lamberts) that I consider this a death sentence to those babies."

The Lamberts seek sole custody of the two embryos, and the McLaughlins want a judge to grant Jen "the legal right to direct the disposition of the unthawed embryos."

The Reproductive Science Center of the San Francisco Bay Area, where the embryos are stored, is staying neutral until the issue is decided in the courts.

A hearing to address McLaughlin's request for a temporary restraining order is set for April 14. There are no pending hearings on the Lamberts' suit, according to the Alameda County Court's Web site.

Meanwhile, Jen McLaughlin says she hopes a civil resolution can be reached. She still refuses to identify the Lamberts by name, instead referring to them as the donor parents, to honor a confidentiality agreement the couples had, even though the Lamberts' name became public record once the lawsuits were filed.

"I'm praying that at the end of the day, we can mend our fences," Jen said. "I'm willing to forgive and forget."

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