§ 3.13 Divorce and Decision-making About the Embryos Produced for Ivf

• Library: Assisted Reproductive Technology: A Lawyer's Guide to Emerging Law and Science (ABA) (2018 Ed.)

§ 3.13 Divorce and Decision-Making about the Embryos Produced for IVF

Courts have been asked to resolve disputes over what to do with "excess" cryopreserved embryos that were produced for IVF but were not used.⁷⁶ Disputes about disposition or control of cryopreserved embryos can arise among divorcing spouses, gamete donors, or clinics when they disagree over whether to destroy the embryos or allow one of the parties to use them or to donate them to others or for research.⁷⁷ While most of the cases have involved divorce disputes between married gamete providers, the same kind of argument could arise when a nonmarital couple has such a disagreement, or when the clinic storing the embryos claims dispositive rights.⁷⁸

There are hundreds of thousands of unused embryos in cryopreservation in the United States.⁷⁹ They are the result of IVF, which produces many cryopreserved embryos, some of which are not immediately implanted and are preserved for possible future use. When a married couple undergoes IVF, they sometimes do not use all the embryos because they have been successful in having children or because the marriage is ending. In some cases, the gamete providers (or the couple for whom the embryos were produced using donor gametes) effectively abandon the embryos by not paying the clinic's storage fees, leaving the decision of disposal of the embryos to the clinic. In other cases, one party may want to use the embryos even during a pending divorce in order to have a child or to have more children.

There is very little statutory law that would provide guidance on the resolution of such disputes. One possible statutory basis for resolving embryo disputes is to require parties seeking IVF to execute a contract providing for decision-making.⁸⁰ A radically different approach is to enact a statute prohibiting the destruction of cryopreserved embryos.⁸¹ A number of states have statutes that prohibit or restrict sale or use of embryos for experimen-tation.⁸² In most instances, the law is silent on this matter, leaving it up to private agreements or to the courts in the event of a dispute. While older cases were resolved primarily in favor of the party wishing to avoid procreation, more recent cases have awarded embryos to a childless party over the objection of the party wishing to avoid procreation.⁸³

The decision in Kass v. Kass in New York is an example of the court looking to a prior agreement to resolve a dispute over disposition of cryopre-served embryos.⁸⁴ At issue was the disposition of five cryopreserved embryos when the divorcing wife sought court permission to thaw and use them while the husband sought to prevent their removal from storage. The parties had executed consent forms that provided that in the event of a divorce, if they were unable to agree on the disposal of their embryos, they would "be disposed by the IVF Program for approved research investigation as determined by the IVF program."⁸⁵ The appellate courts reversed a trial court decision allowing the ex-wife access to the embryos for her own use, since a woman's exclusive right to choose regarding reproduction does not arise prior to implantation in her uterus. Instead, the courts expressed the view that when the progenitors of the embryos entered a free informed agreement regarding their disposition, the court should enforce that agreement. The court enforced the agreement donating the embryos to the IVF program for research.

Another possible solution to disputes over embryos is to balance the interests of the contesting parties when there is no controlling agreement to be enforced. This was the approach used by the Supreme Court of Tennessee in the Davis v. Davis decision⁸⁶ when the original intention of the gamete providers was uncertain and there was no contract governing disposal of excess embryos. After using IVF and still having seven unused embryos, the husband and wife divorced but could not agree on what to do with the embryos. By the time the case reached the Tennessee Supreme Court, each was married to another person. The ex-wife wanted the embryos preserved, but the husband wanted them...