Disputes Over Frozen Embryos in Family Law Cases – A Defense of Counsel or Contemporaneous Mutual Consent
| Date | 01 January 2021 |
| Author | Tim Schlesinger |
| DOI | http://doi.org/10.1111/fcre.12537 |
| Published date | 01 January 2021 |
DISPUTES OVER FROZEN EMBRYOS IN FAMILY LAW CASES –A
DEFENSE OF COUNSEL OR CONTEMPORANEOUS MUTUAL
CONSENT
Tim Schlesinger
Disputes about what to do with unused, cryopreserved, pre-implantation, pre-embryos (“frozen embryos”) in family law cases
have been making headlines for nearly 30 years. At least 15 cases have been decided by courts of appeal across the U.S., and
the result of these decisions is uncertainty. Cases have been decided primarily based on three different approaches: the con-
tract approach; the balancing of interests approach; and the contemporaneous mutual consent approach. There is great reluc-
tance to decide any case in a manner that will compel parenthood against a person’s wishes. The article proposes that we
adopt the approach of counsel or contemporaneous mutual consent.
Practitioner’sKey Points:
Understand the impact that the issue of frozen embryos is having on family lawcases and why disputes are appearing
with increasing frequency.
Know the appropriate questions to ask a client to determine if a dispute over frozen embryos exists in a traditional
family law case.
Be able to advise clients of their options and the consequences of failing to resolve a dispute over frozen embryos.
Be able to articulate a plan for the court to resolve a dispute over frozen embryos.
Understand the larger issues involved in the disputes over frozen embryos and be able to discuss how the legal com-
munity can work to deal with these issues with a level of consistency that serves people struggling with infertility
and the public at large.
Keywords: Balancing; Constitutional; Contemporaneous; Dispute; Embryos; Frozen; In Vitro; Procreate.
I. INTRODUCTION
What should family courts do about frozen embryos?
1
Family Law cases deciding what to do
with frozen embryos have been grabbing headlines and forming significant precedent in the past
several years.
2
Three state supreme courts have ruled on frozen embryo disputes between divorcing
couples, just since October 2018.
3
As of this writing, appellate courts in at least 15 states have had
to decide what to do with frozen embryos because the couple who formed the embryos could not
agree. These cases have taken different approaches with different results, and there is considerable
uncertainty about how any such case might be decided.
These disputes have also illuminated the emotionally charged issue of what to do with frozen
embryos when the couples who create them no longer share the mutual goal of having and rais-
ing children together. The Arizona case of Terrell v. Torres
4
inspired the Arizona legislature to
pass a statute in response to the trial court’s decision.
5
The actress Sofia Vergara and her former
fiancé, Nick Loeb, are still enmeshed, after 5 years of litigation, in a battle over Loeb’s attempts
to gain “custody”of the unused frozen embryos the couple created when they were together.
6
In
Corresponding: tschlesinger@pcblawfirm.com
FAMILY COURT REVIEW, Vol. 59 No. 1, January 2021 83–102, doi: 10.1111/fcre.12537
© 2021 Association of Family and Conciliation Courts
a San Francisco case which also garnered national media attention, Dr. Mimi Lee and her hus-
band fought over whether or not Dr. Lee could have the embryos implanted for the purpose of
having children.
7
A Missouri Court of Appeals case received national attention
8
because it
focused, for the first time, squarely on the issue of whether or not a frozen embr yo is a “per-
son”, in the context of Missouri statutes which declare, essentially, that human life begins at
conception.
9
II. INFERTILITY TREATMENT CHOICES AND LEGAL CONSEQUENCES
Infertility
10
is a significant national medical problem. It affects about 7.3 million Americans, or
approximately one out of every eight couples of reproductive age.
11
One of the most common medi-
cal treatments for prospective parents struggling with infertility is in vitro fertilization (IVF),
12
a
process in which the woman’s eggs (ova)
13
are retrieved and fertilized in a petri dish, typically with
the husband or partner’s sperm.
14
Embryos can also be formed using an egg donor or a sperm
donor, or both. This process is intended to create numerous embryos that are then incubated and
either transferred back into the intended mother’s uterus for gestation and birth, or cryopreserved
(essentially frozen) and stored for future use.
15
Every time a couple or a single person goes through
IVF in order to have a child, the goal is to create embryos for immediate implantation, or to store
for future use. This is true whether the couple is married, unmarried, same-sex, or a single person
trying to become a parent through assisted reproduction. In the vast majority of cases, excess
embryos are created which are not immediately used.
16
Fertility clinics across the United States are
reporting a steady increase in IVF cycles, which means more embryos are being created each
year.
17
Some studies estimate as many as 1.4 million frozen embryos were in storage in the U.S. as
of the end of 2018.
18
Frozen embryos can survive and be viable for a very long time. There is at
least one case in the U.S. of frozen embryos that were stored for 20 years, then transferred and a
child was born.
19
What happens when the couple for whom these embryos were formed is no longer together? The
embryos were formed during a period in which the couple was engaged in a mutual undertaking
intended to bear children from the embryos. What happens when they no longer agree about what
should be done with their frozen (sometimes referred to as “stored”) embryos? Are these embryos
property? Are they persons? Are they “children?”Are they treated the same when the embr yos are
created using the genetic material (gametes) of the couple, or if they are created using donated eggs,
donated sperm, or if the embryos themselves are donated?
Can a couple stipulate, in advance, as to what should happen to the frozen embryos in the event
of a future separation or disagreement? If the couple has an unambiguous agreement, should that
agreement be enforceable? Most important, if one member of the former couple wants to use the
frozen embryos to have children and the other member of the former couple does not, what hap-
pens? Once a woman becomes pregnant, she has a fundamental constitutional right, within the
limits set forth in Roe v. Wade
20
and its progeny, to control the decision about whether or not to ter-
minate her pregnancy.
21
From a constitutional perspective, the man in that situation has little if any
right to determine whether a child is born, or whether the pregnancy is terminated.
22
However, in
the case of frozen embryos, when no one is pregnant, can a person be forced to have a child against
his or her will? Should the law allow a person to be compelled to be a parent against his or
her will?
III. CASE LAW –DISPOSITION OF FROZEN EMBRYOS
At least 15 different cases in the United States, in which a court was asked what to do with
frozen embryos when the couple could not agree, have resulted in final, published appellate deci-
sions. Ten of these cases were decided by that state’s highest appellate court. In each case, one
84 FAMILY COURT REVIEW
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