Embry-Uh-Oh: An Alternative Approach to Frozen Embryo Disputes.

AuthorEl-Zein, Anna
PositionNOTE
  1. INTRODUCTION

    How can two cells--a sperm and an egg--generate so many issues? Consider this example: a couple has difficulty bearing children without medical assistance, (1) so they embark on the journey of in vitro fertilization ("IVF"). IVF, one of many forms of assisted reproductive technology ("ART"), (2) is a fertilization process wherein an egg and sperm cell are manually combined and implanted into the uterus of a female donor or surrogate. (3) After visiting a fertility clinic, (4) the couple decides to proceed with IVF and to cryopreserve, or freeze, unused embryos (5) to ease the IVF process should they attempt procreation again in the future. (6) Generally, the fertility clinic asks the couple to sign a contract--called a cryopreservation consent form--to determine the fate of their embryos in case of death, divorce, or other change in circumstance. (7)

    Sometimes situations do change, and it is at this critical juncture--when donors have established their embryos' destiny but circumstances are not provided for via contract--where disputes arise and the law crumbles. (8) Suppose a couple divorces and the woman wants to implant the embryos against the man's wishes; should a court be allowed to make that type of decision? Alternatively, should a court be permitted to order disposal of the embryos or have the power to force the couple to give the embryos to research? Should a court deem the frozen embryos "life" or "persons," and if so, determine whether they have protectable constitutional rights? (9) To date, only a handful of states have addressed the issue of frozen embryo disposition, (10) and fewer states have enacted legislation to help courts navigate questions of the protectable interests of embryos, contract interpretation in this setting, and constitutional procreation rights. (11)

    In Part II, this Note addresses the general background of domestic and international case law and legislation surrounding embryonic disputes. Part III then examines recent case law developments; specifically, it discusses the only existing frozen embryo dispute in Missouri. (12) Finally, Part IV offers a suggested approach for courts to use when addressing these increasingly complex cases.

  2. LEGAL BACKGROUND

    Although a relatively new concern, frozen embryo disputes have generated a sizeable amount of case law outside of Missouri. Section A of this Part discusses the various approaches state courts use in determining the appropriate disposition of frozen embryos when a couple divorces or separates. Section B then discusses the few state statutes that bind courts when navigating embryonic disputes. Finally, Section C addresses scholars' recommendations, as well as international methods for avoiding frozen embryo disputes.

    1. Methods State Courts Use to Determine Frozen Embryo Disposition

      The United States Supreme Court has yet to address issues arising out of IVF procreation. (13) Without explicit direction, state courts are left to decide these complex issues, dealing with their citizens' most private concerns, on their own. Most courts have taken one of three approaches: the balancing interests approach, the contractual approach, or the contemporaneous mutual assent approach. (14)

      1. The Balancing Interests Approach

        The balancing interests approach seeks to resolve embryonic disputes by "considering] the positions of the parties, the significance of their interests, and the relative burdens that will be imposed by differing resolutions." (15)

        In 1992, the Tennessee Supreme Court became the first major appellate court to consider embryo disposition issues. (16) In Davis v. Davis, a divorced couple disputed the custody of their frozen embryos. (17) Without any type of agreement or consent form completed during the IVF process, the court was left to "weigh the interests of each party to the dispute... in order to resolve that dispute in a fair and responsible manner." (18) The woman wanted to donate the embryos to another couple, while the man opposed donation and wished to discard the embryos. (19)

        The court held that disputes over the disposition of embryos should honor the parties' wishes. (20) However, if no agreement memorializing the parties' wishes exists (as was the case here), the court should weigh the interests of the parties. (21) Balancing the parties' interests, the court found the man's interest in preventing the birth of embryos created from his sperm outweighed the woman's interest in donating the embryos. (22) Where a woman has a reasonable alternative to achieving parenthood, as the court found was the case here, (23) the court concluded "the party wishing to avoid procreation should prevail." (24) The court ruled in favor of the man, and the fertility clinic proceeded with its protocol for unused embryos. (25)

        The Superior Court of Pennsylvania in Reber v. Reiss also used the balancing interests approach but reached a different outcome than did the Davis court. (26) In Reber, a man appealed a Pennsylvania trial court's decision, which awarded embryos to his cancer-ridden ex-wife. (27) As in Davis, the couple in Reber had not signed a consent form prior to the IVF procedures. (28) Applying the balancing interests approach, the court found that the woman's compelling interest in using the embryos for "what is likely her only chance at genetic parenthood" outweighed the man's interests in not procreating. (29) Consequently, the court awarded the embryos to the woman. (30)

        Unlike the previously mentioned frozen embryo disputes, J.B. v. M.B. involved a man seeking ownership of the couples' embryos so that he could implant the embryos into a surrogate or donate them to another couple. (31) The woman, though, wanted to discard the frozen embryos after the couple divorced. (32) Although the couple had entered into an agreement before proceeding with IVF procedures, the Supreme Court of New Jersey found that enforcing contracts to enter or terminate familial relations violates New Jersey public policy. (33) Accordingly, the court did not look to the couple's agreement to determine the disposition of the frozen embryos. (34) Instead, the court balanced the interests of the parties and ultimately found the woman's interest in not procreating outweighed the man's interest in procreating because he was "able to become a father to additional children, whether through natural procreation or further in vitro fertilization." (35)

        In sum, courts using the balancing approach disregard existing contracts and instead weigh one party's interest in having a child against the burden to the other of unwillingly becoming a parent. (36) The courts have typically not allowed one party to force another to become a parent, with one exception. (37) Courts have allowed parties to use frozen embryos against their counterpart's wishes when a woman lacks the ability to have children without the use of the embryos. (38)

      2. The Contractual Approach

        Courts using the contractual approach generally presume that an agreement made between the parties at the time of IVF is valid and enforceable. (39) This approach attempts to avoid costly litigation and leaves such private decisions to the interested parties rather than the courts. (40)

        In Kass v. Kass, the New York Court of Appeals applied the contractual approach to determine whether a cryopreservation agreement between a man and woman should be enforced. (41) The parties agreed that if they were unable to reach a mutually-satisfactory decision as to the disposition of the embryos, the embryos would be given to an IVF program for research. (42) The couple divorced, and despite this agreement, the lower court granted custody of the embryos to the woman, reasoning that "a female participant in the IVF procedure has exclusive decisional authority over the fertilized eggs created through that process, just as a pregnant woman has exclusive decisional authority over a nonviable fetus." (43) However, the state's highest court found the parties "unequivocally manifest[ed] their mutual intention that... the pre-zygotes be donated for research to the IVF program" and ultimately honored the parties' original contract. (44)

        In Litowitz v. Litowitz, a husband and wife signed a cryopreservation consent form that stated "[i]n the event [the Litowitzes] are unable to reach a mutual decision regarding the disposition of [their] pre-embryos, [they] must petition to a [c]ourt of competent jurisdiction for instructions concerning the appropriate disposition of [their] pre-embryos." (45) Upon divorcing, the man wished to place the embryos up for adoption, while the woman hoped to implant the embryos inside her to pursue pregnancy. (46) Yet, neither party was satisfied because the Washington Supreme Court honored a provision in the couple's contract that stated the eggs were to be thawed out (and eventually destroyed) but not allowed to be further developed after the pre-embryos had been in cryopreservation for five years. (47)

        Most recently, in Szafranski v. Dunston, the Illinois Appellate Court used the contractual approach where an ex-boyfriend and ex-girlfriend were fighting over their frozen embryos. (48) After the couple's separation, (49) the woman hoped to implant the embryos within her. (50) She argued that in the event of separation, the contract previously entered into by the parties gave her full custody of the embryos. (51) In the alternative, she asked the court to balance the parties' interests and award her custody. (52) Meanwhile, the man asserted his right not to procreate and requested the court prevent her from implanting the embryos. (53)

        Ultimately, the court in Szafranski held the dispute should be settled by "honoring any advance agreement entered into by the parties" but agreed to use the balancing interests approach if no agreement existed. (54) Applying this framework, the court ignored the written consent form, which stated it would take no action without the...

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