Frozen embryos, divorce, and needed legislation: on the horizon or has it arrived?

• Author: Gonzalez, Maria C.

Although the first reported child born from a "cryopreserved embryo" (commonly referred to as a frozen embryo) surfaced in 1984, it was not until 1992, amazingly, that the legal world first considered what should happen with those unused frozen embryos when the would-be parents proceed to dissolve their marriage. Since then, a handful of appellate divorce decisions across the country have addressed the issue of the fate of frozen embryos when the couple divorces. Those decisions, however, offer little uniformity for future cases.

As a general matter, when couples seek infertility treatment, multiple embryos are created, resulting in frozen, unused embryos for future use and implantation. The decision to create multiple embryos is supported by sound medical practice in order to increase the couple's chances of additional attempts at pregnancy. However, it also undoubtedly creates a future disposition problem that most couples choose not to address prior to commencing the infertility treatment, unless required by the storage facility to do so. As of 2008, USA Today reports there are approximately 500,000 frozen, stored embryos in the U.S. (1) Often, the couple successfully uses some, but not all, of those frozen embryos to create the family they originally intended. If they ultimately decide not to have more children, the last thing on the couple's radar is when and how to dispose of the unused frozen embryos.

A recent study, which looked at how fertility patients view their beliefs and available disposition preferences, coined the phrase "embryo disposition decision" as being a situation the couple will inevitably have to face. (2) A couple's failure to address this issue will ultimately end up before a court to decide in the event their marriage ends in divorce. In 2005, there were 134,260 reported assisted reproductive technology (ART) (3) procedures performed in the U.S., which produced 52,041 children, as compared to only 14,507 children and 64,681 ART procedures in 1996. (4) We can only assume that the use of ART procedures will continue to increase as medical advances make these procedures more readily available to couples struggling with infertility. (5)

Current Florida Law

Florida law provides that the donor of either an egg, sperm, or preembryo (6) relinquishes all maternal or paternal rights with regard to the resulting child. (7) Accordingly, the issue of parentage, or lack thereof, is clear. Florida law further recognizes gestational surrogacy agreements as enforceable contracts. In the context of ART procedures and since 1993, Florida legislative intent was to provide for the status of certain children born from donated eggs or preembryos; the relinquishment of rights by the donor of eggs, sperm, or preembryos; the disposition of eggs, sperm, and preembryos under specified conditions; and the requirement of a written contract before engaging in gestational surrogacy. (8)

F.S. [section] 742.17 requires a written agreement between the couple seeking infertility treatment and their physician "that provides the disposition of the commissioning couple's eggs, sperm, and preembryos in the event of a divorce, the death of a spouse, or any other unforeseen circumstance." (9) It would follow then that such written agreements should be upheld and enforced by the court in the event of the couple's divorce, despite an alleged change in circumstances by one of the parties from the time the agreement was first entered. To do otherwise would make the requirement for a written preembryo agreement meaningless or a legal fiction. If there is no written agreement, then F.S. Ch. 742 provides that the "remaining eggs or sperm shall remain under the control of the party that provides the egg or sperm." (10) Although decision-making authority over the disposition of the preembryo "shall reside jointly with the couple," (11) in the event there is no written agreement, this decision is ultimately passed down for the court to...