§ 4.9 Disposition of Embryos in Divorce Proceedings

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

§ 4.9 Disposition of Embryos in Divorce Proceedings

At the time this edition was written, disputes over disposition of cryopre-served embryos had been addressed in the context of divorce in a number of states, although not always in a consistent manner. Separating unmarried couples also encounter this issue, and in such cases, the courts generally look to the principles used in the divorce cases, especially on contract and reproductive choice issues.

At least one court has ruled that the contractual right to dispose of cryo-preserved embryos produced during the marriage is personal property that can be subjected to disposition in a divorce.⁸² The abortion cases suggest that US law does not consider an embryo a legal person.⁸³ However, to treat an embryo as mere property would belittle its potential to develop into human life.⁸⁴ The general consensus among the reported decisions is that embryos fall into an "interim category" between personhood and property that "entitles them to special respect because of their potential for human life."⁸⁵ The "interim category" into which some courts place embryos entitles the progenitors of the embryo to an ownership or control interest that allows them to dictate the ultimate disposition of their embryos.⁸⁶ Courts and commentators have noted, however, that while couples have the right to control the disposition of their embryos, that right is not unfettered.⁸⁷

Currently the law recognizes four options regarding the enforcement of contracts providing for disposition of embryos. These options are (1) enforcing a dispositional agreement and, in the absence of a contract, giving preference to the party wishing to avoid parenthood; (2) refusing on public policy grounds to enforce a preexisting agreement and enforcing the right of a party to refuse parenthood; (3) allowing agreements but permitting a party to change his or her mind up to the point of use or destruction of the embryos; and (4) enforcing an agreement to dispose of the embryos for nonreproductive use.⁸⁸

Recent cases in Pennsylvania, Missouri, and Colorado confirm a trend in this area. In general, to the extent that the cryopreserved embryos represent a party's only opportunity to bear a biologically related child, that party will be awarded the embryos, even over the other party's objection. Except in these compelling circumstances, the party wishing to avoid procreation will prevail. The courts seem to be favoring the "balancing of interests" approach over other approaches previously employed such as the contracts approach or the contemporaneous mutual consent model.

A case of first impression arose in a Tennessee divorce case in which spouses disagreed on what should be done with cryopreserved embryos that had been frozen for future IVF. In Davis v. Davis,⁸⁹ the court announced the view that if the parties had contracted in advance for disposition of the embryos in the event of a separation or divorce, the court would enforce the contract, although there was no contract in this case. This contract theory was based on the proposition that the progenitors of the embryos can retain the right to reserve the method of disposition by a preexisting agreement that anticipates the problem of divorce.⁹⁰

It is not uncommon for an agreement between the couple and a clinic (sometimes called a cryopreservation agreement) to include a provision regarding disposition of unused embryos following IVF. However, the parties may decide to make a different disposition as part of their divorce proceeding, and if they do so, the latter agreement should control. For example, in a Washington case, the cryopreservation agreement with the clinic gave the wife the right to determine disposition of embryos that had been produced for the married couple using the husband's sperm and donor eggs. As a result of subsequent divorce mediation, which directed that the court should decide the disposition issue, the prior clinic contract no longer applied and the court had power to award the embryos to the husband, who expressed the hope to have more children by use of a surrogate carrier.⁹¹

A different analysis was produced by the Massachusetts court in A.Z. v. B.Z.⁹² That decision ruled that an alleged contract between the parties would not control, and that if one of the parties wishes to avoid procreation after the divorce, that person's choice would control, since the court would not use judicial power to compel a person to become a parent against his will. In a subsequent decision, the Massachusetts court explained that this is based on the public policy proposition that a court cannot use its power to enforce a preexisting contract to marry or to become a parent because such a choice is of a "delicate and intimate character."⁹³

The New Jersey court in J.B. v. M.B.⁹⁴ took a middle view between the Tennessee and Massachusetts approaches. It ruled that agreements to dispose of embryos are not contrary to public policy, but that each party has a right to change his or her mind up to the point of use or destruction of the embryos. Under this analysis, generally the party choosing not to become a...