By:  Susan L. Pollet, Esq.

For many individuals, giving birth to a child, the fulfillment of a life dream, is difficult to achieve.  With advancements in reproductive technology, infertile couples are increasingly turning to artificially assisted conception procedures.  When successful, these procedures can make dreams come true for the couples, but thorny legal issues arise if the couples later divorce.

The most popular procedure is in vitro fertilization (IVF), in which eggs are extracted from the woman’s body, fertilized in a Petri dish, and then reinserted into the womb.  For many couples, IVF is their last opportunity to bear children with whom they have a genetic connection.  The IVF procedure is expensive and requires enormous physical and emotional effort.  The first child conceived by IVF was born in 1978.

Legal issues arise when, after the embryos are frozen, but before implantation, couples divorce and disagree about what should be done with the frozen embryos.  The available options usually involve a donation to the IVF clinic for research purposes, a donation to another infertile couple, or use by one of the members of the original couple still wanting to have a child.

At present, there are no federal statutes that provide a uniform consensus on resolving the disputes over the ownership of pre-embryos.  Several states have enacted legislation to address the disposition of frozen embryos.

A review of the literature, state case law, and state legislation make clear that scholars, courts, and legislatures cannot agree on the future of frozen pre-embryos.  Most agree that federal legislation should be enacted.  According to some commentators, the legislature must first define the rights of a pre-embryo by determining its legal status.

Scholars state that courts and legislatures may apply three types of legal status to pre-embryos.  The first is the “right to life” approach which maintains that life begins at fertilization and that pre-embryos should never be destroyed.  The second approach gives pre-embryos the “status of property” and focuses upon the rights of the donors.  The third is the “special respect” approach, which advocates a balancing test that takes into account the rights of all parties.

The main issues that courts have grappled with are whether a court should enforce a couple’s pre-conception agreement; whether a person can be forced to be a parent against his or her wishes; and whether one party’s interest in becoming a parent outweighs the other party’s interest in not becoming a parent.  There are reported cases in the United States of pre-embryo custody disputes in which the courts awarded the pre-embryos to the party opposing implantation, which resulted in stopping the process the parties began.  These courts, however, have disagreed on the reasons for their decisions.  Some courts use general principles of contract interpretation to arrive at their decisions where there is an agreement between the parties.

In the event of a divorce where one of the parties wants to be able to use the stored pre-embryos to have the child, there has been disagreement in the few court opinions addressing this problem.  In some instances, the courts have allowed for the destruction of the pre-embryos, and courts have prevented a party from using the stored pre-embryos to have a child when the other party objects.