Who Owns Your Frozen Embryo?
Promises and Pitfalls of Emerging Reproductive Options
Robyn Shapiro is a lawyer in Milwaukee specializing in reproductive issues.
Our enhanced ability to freeze sperm, embryos and now ova, and then to thaw them without destroying their biological potential, has offered a number of new reproductive options to fertile and infertile individuals. In fact, cryo-preservation (freezing) of embryos is now a standard practice at in vitro fertilization (IVF) programs because it enhances both the safety and the efficiency of IVF.
Standard IVF treatment involves the surgical removal of eggs from a woman's ovaries, extracorporeal fertilization, and then placement in the uterus. The woman's ovaries are hormonally stimulated to produce multiple eggs so that more than the one egg naturally produced during a monthly cycle can be retrieved. Typically, many more eggs are retrieved than can be safely fertilized and implanted in the uterus at one time. Cryopreservation of embryos allows all of the retrieved eggs to be fertilized, a safe number to be placed in the uterus, and the rest preserved for transfer during later cycles.
In this way, embryo freezing ensures that at least several embryos are available for immediate transfer, and it relieves the woman of the physical burden and costs of again undergoing ovarian stimulation and egg retrieval during later attempts at IVF pregnancy. Usually, decisions about future use of cryopreserved embryos are not problematic. Yet, difficult ethical, legal, and social questions can arise if there is a dispute later about the disposition of the cryopreserved embryos.
Over the past several years, a number of well-publicized cases have highlighted dilemmas surrounding decisional authority over frozen embryos. In Davis v. Davis, 842
S.W.2d 588 (Tenn. 1992), Mary Sue Davis and Junior Lewis Davis attempted to have children through several in vitro fertilization attempts over a number of years. The last attempt resulted in seven extra embryos that were cryopreserved for possible implantation at a later time. The Davises had not executed a document specifying disposition of these embryos in the event of their deaths or divorce. When the couple filed for divorce, Junior Davis sought to enjoin the fertility clinic from releasing the embryos to Mary Sue for implantation, and thereby to assure that he would not become a biological parent, but Mary Sue sought "custody" of the embryos, initially so that she could have them transferred to her own uterus, and later so that she could donate them for another woman to gestate.
The trial court ruled that the seven frozen embryos were "human beings existing as embryos" and "children in vitro" whose best interests required "that they be available for implantation," and it awarded the embryos to Mary Sue. The court of appeals overturned the circuit court, finding that Junior Davis had a "constitutionally protected right not to beget a child where no pregnancy has taken place." The Tennessee Supreme Court upheld the court of appeals decision, ruling that in resolving disputes about embryo disposition between gamete providers, if there is no prior agreement, the court must weigh the relative interests of the parties in using or not using the embryos on a case-by-case basis. Given the facts in Davis, the court found that Mary Sue's interests in embryo donation were not as significant as Junior's interests in avoiding parenthood.
In York v. Jones, 717 F. Supp. 421 (S.D. Va. 1989), the court was asked to decide who had dispositional authority over a frozen embryo when the couple agreed on its use, but the IVF program challenged their decision. The Yorks had entered an IVF program in Virginia, and later moved to California. When they asked to have their cryopreserved embryo moved to a Los Angeles fertility clinic so that they could continue their efforts to become parents, the Virginia clinic refused, contending that the embryo had to be transferred to Mrs. York's uterus only at the Virginia clinic.
The agreement that the Yorks had signed stated that the Yorks had principal dispositional authority over the embryo, but it included only three dispositional options in the event that the Yorks no longer wished "to attempt to initiate a pregnancy": donation to an anonymous infertile couple; donation for research purposes; or thawing. The court found that this agreement created an enforceable bailment arrangement between the Yorks and the clinic, and that the clinic had an obligation to return the Yorks's property to them.
To minimize embryo disposition disputes, and to maximally protect privacy and liberty interests of the individuals involved, legislation should (a) affirm the gamete providers' decisional authority over their cryopreserved embryos; (b) require them to enter an agreement governing the future disposition of their embryos; and (c) ensure the enforceability of such prior directives. In the absence of a prior agreement, courts should prohibit use of frozen embryos by either party without the consent of the other.
Dispositional Authority
Individuals' fundamental constitutional privacy and liberty interests in controlling the exercise of their reproductive capacities suggest that gamete providers have the right to decide the fate of their frozen embryos. Whether embryos are considered to be persons (as they were conceptualized by the Davis trial court), mere body parts, or property (as the York court suggested), there are no compelling reasons to override the decisional authority of the gamete providers. If the embryo is considered to be a person, analogy to case law involving decision making for children makes it clear that the embryos' best interests will be promoted if the gamete providers maintain decisional authority.
Just as courts have acknowledged that parents are ordinarily the proper decision makers for their children because they are most concerned about their children's welfare, embryos' best interests are maximally protected if gamete providers maintain decisionmaking authority over their fate.
On the other hand, if an embryo is recognized as personal property, the gamete providers, as "owners," control their use. Moreover, if embryos are considered body parts, lodging decision-making authority in the gamete providers is also consistent with law establishing that individuals may donate their organs, semen, or blood to others, but they cannot be forced to give them up.
Prior Directives
Since the gamete providers are equal contributors to the embryo's creation, their dispositional authority over the embryo must be exercised jointly, and anticipation of the inability or unavailability of the couple to agree on disposition is crucial. To deal with the possibility of death, divorce, separation, disagreement, or closure of the fertility clinic, couples who undergo embryo freezing should be required to designate in advance their choices for disposition of frozen embryos in the event that such situations occur. Dispositional options may include: destruction of their embryos, donation for research, storage, or donation to another infertile couple.
Requiring the couple to make a binding choice regarding future disposition of their embryos, from among a sufficiently broad range of dispositional options, would prevent the opportunity for decision making by others (e.g., the state, the court, or the IVF clinic) in ways that might insufficiently value the reproductive concerns of the couple involved.
To date, only two states have enacted legislation addressing prior embryo disposition agreements. These state statutes, which take very different approaches, are of limited practical value. Florida's law provides that couples undergoing IVF must enter into a written agreement that provides for the disposition of embryos in the event of death, divorce, or other "unforeseen circumstances"; and in the absence of a written agreement, the gamete providers are given joint dispositional authority. Fla. Stat. Ann. § 742.17 (West 1997). The attempt in the first portion of this law to avert disposition disputes by requiring prior agreements is thwarted by the latter provision stating that in the absence of such an agreement, the disagreeing gamete providers have joint authority—an invitation for judicial involvement.
A 1986 Louisiana law declares that an in vitro fertilized ovum is a "juridical person" that can be disposed of only through implantation. If IVF patients "fail to express their identity" or renounce their parental rights, the physician is deemed to be the embryo's temporary guardian until adoptive implantation can occur. La. Rev. Stat. Ann. § 9:123, § 9:126 (West 1991). In Louisiana, then, an agreement may not direct embryo disposition other than implantation. Other options, such as donation for research, or destruction, are prohibited—although the constitutionality of this law is questionable in light of current abortion jurisprudence.
Legislation should establish the enforceability of prior embryo disposition agreements and ensure that dispositional options are not unduly restricted. In the absence of such legislation, courts should enforce these directives as other contracts would be enforced.
In September 1997, a New York appellate court did just that. In Kass v. Kass, 235 A.D.2d, 150, 663 N.Y.S.2d 581 (1997), a couple had undergone 10 IVF attempts after entering into an agreement stating that if they no longer wished to have children together or were unable to make a decision about the embryos, the embryos could be used for research. The couple then divorced. The ex-wife requested sole custody of the embryos so that she could attempt to become pregnant with them. The trial court held that women should have unfettered discretion over cryopreserved embryos in such circumstances, but the appellate court enforced the couple's prior embryo disposition agreement.
Some object to enforcing prior embryo disposition agreements between the gamete providers due to the gap in time between execution and operation of the agreement. They contend that the possibilities addressed in the agreement are theoretical when the agreement is made, and that the gamete providers' needs and interests may change so drastically by the time for its implementation that enforcement of its terms would be unfair.
But such problems of foreseeability and/or changed circumstances do not differ in kind from those that attend many other contracts that are held to be binding even when changed circumstances make the original agreement undesirable to one or both of the parties. Clear rules upholding the enforceability of contracts provide the necessary incentives for the parties to bargain meaningfully and agree on precise terms.
In the Absence of a Prior Directive
In situations where gamete providers are unable to agree on the use of their cryo-preserved embryos, and no prior disposition agreement exists, the embryos should not be used by either gamete provider. Allowing one party to use the embryo to create a child over the objection of the other would not be consistent with the parties' intent in initially agreeing to participate in IVF, and it would contravene their status as equal contributors to the embryo's creation. At the time of cryopreservation, the parties consented to joining their genetic material in order to bear a child and thereby fill their joint reproductive goal.
In the absence of an advance disposition agreement, it is unreasonable to infer that they agreed to any other use of the embryo. Therefore, in light of the fact that the gamete providers are equal contributors to the creation of the embryo, with equal power over it, embryo use by either party, without consent of the other, to do anything other than creating and parenting a child together should be prohibited.
Furthermore, use of the embryo by one gamete provider to create a child, over the objection of the other, would unjustly infringe upon the nonconsenting provider's fundamental right to choose whether or not to become a parent. Analogously, an ex-wife clearly could not insist that she have access to the frozen sperm of her ex-husband, over his objections, in order to bear a child after they divorce. Even if the nonconsenting provider is absolved of financial and other parental responsibilities, many individuals in such circumstances would nonetheless suffer psychologically and emotionally due to their perceived moral duty toward their genetic offspring. In light of alternatives for parenthood available to the party wishing to reproduce, the objecting party's decision not to parent a child should be respected.
Conclusion
Reproductive technology in this country remains largely unregulated. Perhaps this is true because of the politically charged nature of the issue of assisted human reproduction, the speed with which our scientific and technologic capabilities have advanced, or the special sphere of privacy that has traditionally surrounded procreative choice. Legislation that would require and protect the enforceability of embryo disposition agreements, and ensure reasonable accommodation of dispositional alternatives, would help to prevent later disagreements without interfering with fundamental rights of reproductive autonomy.
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Published quarterly by ABA Publishing, Human Rights covers a wide range of topics in the human and civil rights arena. While the subscription is free of charge for Section members, individual subscriptions may be purchased for $18 by calling the American Bar Association Service Center at 1-800-285-2221. Additional annual subscriptions for Section members are $3 each.
If you are a member of the ABA but not the Section of Individual Rights and Responsibilities then we encourage you to join today. If you are not a member of the ABA then we encourage you to visit the ABA membership page. You can also resolve membership issues by calling 1-800-285-2221.
Please note that all information appears as it did when originally published. Therefore, some biographical information about the authors may no longer be accurate.
Copyright Info
All articles and information on this page are copyright 2010 by the American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Promises and Pitfalls of Emerging Reproductive Options
Robyn Shapiro is a lawyer in Milwaukee specializing in reproductive issues.
Our enhanced ability to freeze sperm, embryos and now ova, and then to thaw them without destroying their biological potential, has offered a number of new reproductive options to fertile and infertile individuals. In fact, cryo-preservation (freezing) of embryos is now a standard practice at in vitro fertilization (IVF) programs because it enhances both the safety and the efficiency of IVF.
Standard IVF treatment involves the surgical removal of eggs from a woman's ovaries, extracorporeal fertilization, and then placement in the uterus. The woman's ovaries are hormonally stimulated to produce multiple eggs so that more than the one egg naturally produced during a monthly cycle can be retrieved. Typically, many more eggs are retrieved than can be safely fertilized and implanted in the uterus at one time. Cryopreservation of embryos allows all of the retrieved eggs to be fertilized, a safe number to be placed in the uterus, and the rest preserved for transfer during later cycles.
In this way, embryo freezing ensures that at least several embryos are available for immediate transfer, and it relieves the woman of the physical burden and costs of again undergoing ovarian stimulation and egg retrieval during later attempts at IVF pregnancy. Usually, decisions about future use of cryopreserved embryos are not problematic. Yet, difficult ethical, legal, and social questions can arise if there is a dispute later about the disposition of the cryopreserved embryos.
Over the past several years, a number of well-publicized cases have highlighted dilemmas surrounding decisional authority over frozen embryos. In Davis v. Davis, 842
S.W.2d 588 (Tenn. 1992), Mary Sue Davis and Junior Lewis Davis attempted to have children through several in vitro fertilization attempts over a number of years. The last attempt resulted in seven extra embryos that were cryopreserved for possible implantation at a later time. The Davises had not executed a document specifying disposition of these embryos in the event of their deaths or divorce. When the couple filed for divorce, Junior Davis sought to enjoin the fertility clinic from releasing the embryos to Mary Sue for implantation, and thereby to assure that he would not become a biological parent, but Mary Sue sought "custody" of the embryos, initially so that she could have them transferred to her own uterus, and later so that she could donate them for another woman to gestate.
The trial court ruled that the seven frozen embryos were "human beings existing as embryos" and "children in vitro" whose best interests required "that they be available for implantation," and it awarded the embryos to Mary Sue. The court of appeals overturned the circuit court, finding that Junior Davis had a "constitutionally protected right not to beget a child where no pregnancy has taken place." The Tennessee Supreme Court upheld the court of appeals decision, ruling that in resolving disputes about embryo disposition between gamete providers, if there is no prior agreement, the court must weigh the relative interests of the parties in using or not using the embryos on a case-by-case basis. Given the facts in Davis, the court found that Mary Sue's interests in embryo donation were not as significant as Junior's interests in avoiding parenthood.
In York v. Jones, 717 F. Supp. 421 (S.D. Va. 1989), the court was asked to decide who had dispositional authority over a frozen embryo when the couple agreed on its use, but the IVF program challenged their decision. The Yorks had entered an IVF program in Virginia, and later moved to California. When they asked to have their cryopreserved embryo moved to a Los Angeles fertility clinic so that they could continue their efforts to become parents, the Virginia clinic refused, contending that the embryo had to be transferred to Mrs. York's uterus only at the Virginia clinic.
The agreement that the Yorks had signed stated that the Yorks had principal dispositional authority over the embryo, but it included only three dispositional options in the event that the Yorks no longer wished "to attempt to initiate a pregnancy": donation to an anonymous infertile couple; donation for research purposes; or thawing. The court found that this agreement created an enforceable bailment arrangement between the Yorks and the clinic, and that the clinic had an obligation to return the Yorks's property to them.
To minimize embryo disposition disputes, and to maximally protect privacy and liberty interests of the individuals involved, legislation should (a) affirm the gamete providers' decisional authority over their cryopreserved embryos; (b) require them to enter an agreement governing the future disposition of their embryos; and (c) ensure the enforceability of such prior directives. In the absence of a prior agreement, courts should prohibit use of frozen embryos by either party without the consent of the other.
Dispositional Authority
Individuals' fundamental constitutional privacy and liberty interests in controlling the exercise of their reproductive capacities suggest that gamete providers have the right to decide the fate of their frozen embryos. Whether embryos are considered to be persons (as they were conceptualized by the Davis trial court), mere body parts, or property (as the York court suggested), there are no compelling reasons to override the decisional authority of the gamete providers. If the embryo is considered to be a person, analogy to case law involving decision making for children makes it clear that the embryos' best interests will be promoted if the gamete providers maintain decisional authority.
Just as courts have acknowledged that parents are ordinarily the proper decision makers for their children because they are most concerned about their children's welfare, embryos' best interests are maximally protected if gamete providers maintain decisionmaking authority over their fate.
On the other hand, if an embryo is recognized as personal property, the gamete providers, as "owners," control their use. Moreover, if embryos are considered body parts, lodging decision-making authority in the gamete providers is also consistent with law establishing that individuals may donate their organs, semen, or blood to others, but they cannot be forced to give them up.
Prior Directives
Since the gamete providers are equal contributors to the embryo's creation, their dispositional authority over the embryo must be exercised jointly, and anticipation of the inability or unavailability of the couple to agree on disposition is crucial. To deal with the possibility of death, divorce, separation, disagreement, or closure of the fertility clinic, couples who undergo embryo freezing should be required to designate in advance their choices for disposition of frozen embryos in the event that such situations occur. Dispositional options may include: destruction of their embryos, donation for research, storage, or donation to another infertile couple.
Requiring the couple to make a binding choice regarding future disposition of their embryos, from among a sufficiently broad range of dispositional options, would prevent the opportunity for decision making by others (e.g., the state, the court, or the IVF clinic) in ways that might insufficiently value the reproductive concerns of the couple involved.
To date, only two states have enacted legislation addressing prior embryo disposition agreements. These state statutes, which take very different approaches, are of limited practical value. Florida's law provides that couples undergoing IVF must enter into a written agreement that provides for the disposition of embryos in the event of death, divorce, or other "unforeseen circumstances"; and in the absence of a written agreement, the gamete providers are given joint dispositional authority. Fla. Stat. Ann. § 742.17 (West 1997). The attempt in the first portion of this law to avert disposition disputes by requiring prior agreements is thwarted by the latter provision stating that in the absence of such an agreement, the disagreeing gamete providers have joint authority—an invitation for judicial involvement.
A 1986 Louisiana law declares that an in vitro fertilized ovum is a "juridical person" that can be disposed of only through implantation. If IVF patients "fail to express their identity" or renounce their parental rights, the physician is deemed to be the embryo's temporary guardian until adoptive implantation can occur. La. Rev. Stat. Ann. § 9:123, § 9:126 (West 1991). In Louisiana, then, an agreement may not direct embryo disposition other than implantation. Other options, such as donation for research, or destruction, are prohibited—although the constitutionality of this law is questionable in light of current abortion jurisprudence.
Legislation should establish the enforceability of prior embryo disposition agreements and ensure that dispositional options are not unduly restricted. In the absence of such legislation, courts should enforce these directives as other contracts would be enforced.
In September 1997, a New York appellate court did just that. In Kass v. Kass, 235 A.D.2d, 150, 663 N.Y.S.2d 581 (1997), a couple had undergone 10 IVF attempts after entering into an agreement stating that if they no longer wished to have children together or were unable to make a decision about the embryos, the embryos could be used for research. The couple then divorced. The ex-wife requested sole custody of the embryos so that she could attempt to become pregnant with them. The trial court held that women should have unfettered discretion over cryopreserved embryos in such circumstances, but the appellate court enforced the couple's prior embryo disposition agreement.
Some object to enforcing prior embryo disposition agreements between the gamete providers due to the gap in time between execution and operation of the agreement. They contend that the possibilities addressed in the agreement are theoretical when the agreement is made, and that the gamete providers' needs and interests may change so drastically by the time for its implementation that enforcement of its terms would be unfair.
But such problems of foreseeability and/or changed circumstances do not differ in kind from those that attend many other contracts that are held to be binding even when changed circumstances make the original agreement undesirable to one or both of the parties. Clear rules upholding the enforceability of contracts provide the necessary incentives for the parties to bargain meaningfully and agree on precise terms.
In the Absence of a Prior Directive
In situations where gamete providers are unable to agree on the use of their cryo-preserved embryos, and no prior disposition agreement exists, the embryos should not be used by either gamete provider. Allowing one party to use the embryo to create a child over the objection of the other would not be consistent with the parties' intent in initially agreeing to participate in IVF, and it would contravene their status as equal contributors to the embryo's creation. At the time of cryopreservation, the parties consented to joining their genetic material in order to bear a child and thereby fill their joint reproductive goal.
In the absence of an advance disposition agreement, it is unreasonable to infer that they agreed to any other use of the embryo. Therefore, in light of the fact that the gamete providers are equal contributors to the creation of the embryo, with equal power over it, embryo use by either party, without consent of the other, to do anything other than creating and parenting a child together should be prohibited.
Furthermore, use of the embryo by one gamete provider to create a child, over the objection of the other, would unjustly infringe upon the nonconsenting provider's fundamental right to choose whether or not to become a parent. Analogously, an ex-wife clearly could not insist that she have access to the frozen sperm of her ex-husband, over his objections, in order to bear a child after they divorce. Even if the nonconsenting provider is absolved of financial and other parental responsibilities, many individuals in such circumstances would nonetheless suffer psychologically and emotionally due to their perceived moral duty toward their genetic offspring. In light of alternatives for parenthood available to the party wishing to reproduce, the objecting party's decision not to parent a child should be respected.
Conclusion
Reproductive technology in this country remains largely unregulated. Perhaps this is true because of the politically charged nature of the issue of assisted human reproduction, the speed with which our scientific and technologic capabilities have advanced, or the special sphere of privacy that has traditionally surrounded procreative choice. Legislation that would require and protect the enforceability of embryo disposition agreements, and ensure reasonable accommodation of dispositional alternatives, would help to prevent later disagreements without interfering with fundamental rights of reproductive autonomy.
Print Feedback ShareThisA A Advertisement
Current Issue
Spring 2010 - HIV/AIDS and the Rule of Law: Rights Here, Right Now
Last Year
Fall 2009 - The African American Journey
Summer 2009 - The Evolution of the American Family
Spring 2009 - Criminal Justice on Trial
Winter 2009 - Judicial Independence
Editorial Board
View 2010-2011 Editorial Board
About Human Rights Magazine
Join the Section
Published quarterly by ABA Publishing, Human Rights covers a wide range of topics in the human and civil rights arena. While the subscription is free of charge for Section members, individual subscriptions may be purchased for $18 by calling the American Bar Association Service Center at 1-800-285-2221. Additional annual subscriptions for Section members are $3 each.
If you are a member of the ABA but not the Section of Individual Rights and Responsibilities then we encourage you to join today. If you are not a member of the ABA then we encourage you to visit the ABA membership page. You can also resolve membership issues by calling 1-800-285-2221.
Please note that all information appears as it did when originally published. Therefore, some biographical information about the authors may no longer be accurate.
Copyright Info
All articles and information on this page are copyright 2010 by the American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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