Fall 2005 #3. Resolving disputes over the disposition of frozen preembryos: Playing catch-up with IVF technologies.

Author:by Kim Pittman

Maine Bar Journal


Fall 2005 #3.

Resolving disputes over the disposition of frozen preembryos: Playing catch-up with IVF technologies

Maine Bar JournalFall 2005RESOLVING DISPUTES OVER THE DISPOSITION OF FROZEN PREEMBRYOS: PLAYING CATCH-UP WITH IVF TECHNOLOGIESby Kim PittmanIn 1978, the first child conceived outside a woman's body was born.(fn1) Five years later, an Australian couple heralded the birth of the first child to be born from implantation of a previously frozen embryo. Today, it is estimated that one in five couples experiences some sort of infertility problem,(fn2) with six million people, or 10 percent of the reproductive age population, affected.(fn3) The last comprehensive survey by the Centers for Disease Control shows that sixty-five thousand assisted reproductive technology procedures occur each year in the United States at more than three hundred clinics, the majority involving in vitro fertilization, or IVF.(fn4)

Although the technological advancements of IVF are moving along at a quick pace, the states themselves have done little to regulate the industry. And nowhere is the lack of regulation more evident than when couples who have undergone IVF producing viable preembryos, separate, and consequently seek legal determination as to which party gets control of the remaining unused preembryos. As the courts have begun to be called on to resolve these disposition issues, they are pleading for legislative guidance.(fn5) So far, only a handful of states have responded.(fn6) But none have definitively resolved the problem of disposition of frozen preembryos, leaving couples (and IVF clinics) with little understanding of their rights should some of their preembryos be in storage when a dispute arises.

For as many purposes as IVF serves, the freezing of unused preembryos has created a field of controversy when it comes to their ultimate disposition. Without guidelines, each state court is left to its own devices to develop the law in this unchartered area. The cases that follow detail the divergent approaches the courts have taken in the last decade, proving the need for clear legislation to facilitate consistent results within all jurisdictions.

Major Case Law

Davis v. Davis

The Supreme Court of Tennessee was the first high court to decide a case involving the disposition of frozen embryos where former spouses did not agree. Mary Sue and Junior Davis were married in 1980 and after several failed attempts to have their own genetic child, they turned to IVF.(fn7) Before all of their nine preembryos could be used, Mary Sue and Junior divorced.(fn8) Their court battle ensued from Mary Sue's wanting to use the preembryos herself post-divorce, whereas Junior wanted to keep the preembryos in their frozen state, as he was reluctant to become a parent outside the bounds of marriage.(fn9)

The trial court found that the eight-cell entities were "children in vitro,"(fn10) and thus awarded Mary Sue custody because, in the court's opinion, it was in the best interest of the children to be born rather than be destroyed outright.(fn11) The Court of Appeals rejected the trial court's reasoning, finding instead that Junior had a constitutional right not to parent a child where no pregnancy had occurred.(fn12) Although rejecting the trial court's characterization of the preembryos as children, the appeals court was reluctant to definitively reclassify them as mere property.(fn13) Mary Sue then appealed to the Supreme Court of Tennessee, this time seeking to donate the preembryos to a childless couple instead of using them for herself.(fn14)

The Supreme Court of Tennessee chose to apply a balancing test, weighing each party's interest on a factual basis.(fn15) Although agreeing with the appeals court below that preembryos could not be considered "persons," the court further concluded that as the preembryo develops, it must be afforded more respect than mere human cells because of their "burgeoning potential for life."(fn16) Therefore, the court found the preembryos to occupy an "interim category that entitles them to special respect because of their potential for human life."(fn17)

The court noted the need to protect individuals from "unwarranted governmental intrusion . . . involving intimate questions of personal and family concern."(fn18) Mary Sue's right to procreate, as well as Junior's right not to procreate, were of equally vital concern.(fn19) The court found the potential for financial and physiological affects on Junior if his genetic offspring were to be brought into the world to be profound.(fn20) The court then considered Mary Sue's emotional reaction upon learning that the lengthy and sometimes painful IVF procedures she went through were futile.(fn21) In the end, the court found her concerns less significant than those of her ex-husband's, allowing the preembryos to remain at the clinic indefinitely.(fn22)

In its conclusion, the court laid out its new position on the disposition of frozen embryos where a dispute arises. Disputes are to be resolved first by honoring the preferences of only the gamete-providers themselves.(fn23) If their preference is not known, any prior agreement on record pertaining to disposition should be followed.(fn24) If no prior agreement exists, then the interests of the parties involved must be weighed against each other.(fn25) The party looking to avoid procreation should prevail, but only when the party wishing to use the preembryos has other means in which to have a child.(fn26) If no other reasonable alternatives exist, then the party wishing to use the preembryos should be given greater consideration.(fn27)

Kass v. Kass

Six years after Davis, the New York courts were confronted with a similar dispute but this time, the couple had signed a consent form prior to implantation. After experiencing fertility problems, Maureen Kass underwent egg retrieval five times, producing nine ova.(fn28) Before a second transfer, which would be the first in which frozen preembryos would be used, the clinic required the Kass's to sign consent forms.(fn29) These forms explained the procedure, the risks and benefits, and required the Kass's to come to a decision regarding the disposition of the preembryos were the Kass's no longer in need of them.(fn30) The Kass's opted for any unused, unwanted preembryos to be given to the IVF Clinic for research purposes and their ultimate destruction.(fn31) Three weeks after the procedure, which failed to result in a pregnancy, the Kass's filed for divorce.(fn32)

Less than a month later, Maureen gave notice to the clinic that she was against any destruction or release of her preembryos for research.(fn33) She then commenced action to get custody of the preembryos so she could use them herself.(fn34) Her husband counterclaimed, requesting specific performance of the prior written agreement.(fn35)

The Supreme Court of New York held that a female participant in the IVF process had the exclusive decisional authority over preembryos created through that process.(fn36) The Appellate Division, although divided on the issue as to whether the agreement itself was sufficiently clear to control disposition, reversed the lower court's ruling, holding that a woman's right to privacy and bodily integrity are not implicated prior to implantation.(fn37)

New York's highest court, the Court of Appeals, although acknowledging that the uncertainties inherent in the IVF process, complicated all the more by cryropreservation (extending the viability of preembryos indefinitely) allows time for circumstances and minds to change, held that the agreements signed prior to when a dispute arises should be presumed valid.(fn38) The court reasoned that if a couple knows that their advance agreements will be enforced, that fact would underscore the "seriousness and...

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