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On April 2, 1998, Monica and James Johnson, ages 28 and 32 respectively, visit the Kettering Clinic in hopes of determining why they are having such a difficult time conceiving a child. After testing, it is determined that James is afflicted with low sperm motility and it will be very difficult for the couple to conceive naturally. Therefore, Monica and James make the decision to undergo in vitro fertilization.

Monica begins daily hormone injections and then has her eggs removed for fertilization. After waiting and hoping for several weeks after the implantation procedure, Monica discovers that she has not become pregnant. Undeterred, Monica and James decide to try again. They try four more times before they decide that the pressure to have a baby and the up and downs from the hormones have placed to great a strain on their marriage to continue.

James and Monica move into separate residences and get a divorce. At the time of the divorce, there are 10 frozen embryos being stored at the Kettering Clinic that were never used by James and Monica, and these embryos are all but forgotten in the divorce settlement.

On June 24, 2008, Monica marries David, and they have two happy, healthy twin girls. James remarries Jessica, in May of 2009. Unfortunately, James and Jessica experience the same difficulty with James’ sperm that he and Monica experienced, as well as additional complications with Jessica’s ability to produce eggs. The couple is told that it will be next to impossible to conceive naturally, and almost as difficult to conceive using in vitro fertilization. After several failed attempts, James called Monica and asks if he may use the embryos that they have created to allow Jessica to become pregnant. Monica refuses, explaining that she has two happy little girls, and does not want to be the mother to any additional children, especially with a man who is no longer her husband. Additionally, she does not want to have children that she will not have a say in parenting.

James sues Monica for the property rights to the embryos. In his complaint, he contends that he should gain custody of the embryos because he is the person with the most compelling need for them, as he cannot become a father without them.

You are the judge in this case. As a judge, you should consider legal precedent in determining your ruling. In your decision, please discuss the precedent in this case, please include the likely legal arguments presented by both parties, the legal status of the embryos in question, and your ultimate decision on who should obtain custody of the embryos.

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