Resolving disputes over excess frozen embryos through the confines of property and contract law.

• Author: Petralia, Shelly R.

1. BACKGROUND II. EMBRYONIC MATERIAL AS PROPERTY A. Labor/Lockean Theory of Property B. Economic Theory of Property III. CURRENT REGULATION OF EMBRYONIC MATERIALS A. Statements by Expert Agencies B. Current State Statutes IV. OUTCOME DETERMINATION THROUGH CONTRACT LAW V. CONCLUSION New technology in the field of fertility has allowed for increased production of human embryos. Several conflicts occur given this increased number of cryogenically frozen embryos. One such conflict is what to do with left over frozen embryos when couples or individuals have decided that they have enough children or no longer want children. Another issue is what to do with the embryos when a couple disagrees as to whether they should be used. In trying to address these concerns, one must decide whether an embryo should be treated as property. If so, to whom does this property belong? If an embryo cannot be fit neatly into the domain of property and be apportioned through such channels, can the realm of contract law dictate the answer?

   This Article addresses the conflicts that arise due to the increased number of cryogenically frozen embryos produced during in vitro fertilization (IVF). Part I discusses the IVF process, in general. While it recognizes the man's role in the process, it focuses primarily on the physical and emotional hardships that are placed on the woman. Part I also gives the backdrop of the case law in the area of embryo distribution. Part II introduces the idea that an embryo should be reduced to private property, through utilization of the labor and economic theories of property law. Additionally, an embryo's use, rather than its waste, promotes a more efficient society. The role that the legislature should play in the appropriation of embryonic property is also addressed. The dominion of property law suggests that the enforcement of contracts is eminent to communal survival. Part III discusses the current regulations in place as well as the lack of direction given by these regulations when a dispute arises as to the distribution of embryos. Part IV discusses how contracts with IVF clinics meet the standard elements of enforceability in contract law. This article also addresses the current criticisms and possible defenses against such enforcement. Part V synthesizes the findings of the previous articles written on this topic. The conclusion is that where a dispute arises concerning the use of embryos, the party seeking to use or implant the embryos should prevail unless a contract governing the dispute exists. Where an enforceable contract exists, that contract should govern the distribution.

1. BACKGROUND

   IVF allows for couples or individuals, experiencing fertility problems, to increase their chances of procreation. IVF is most often used when a pathologic fallopian tube is unable to transport eggs to the uterus, where implantation into the uterine wall and fertilization by the sperm must occur) Women undergoing IVF are exposed to significant medical risks. (2) To minimize the exposure to these risks, doctors can retrieve and fertilize the eggs and then cryogenically freeze excess eggs for future use should the initial attempt be unsuccessful. (3) The freezing of fertilized eggs for future implantation attempts reduces the physiological manipulation of the woman's reproductive system. That is, she will be forced to hormonally prepare for egg retrieval to take place only once. (4) If the eggs are fertilized and developed normally, then the embryos are transferred to the woman's uterus. Typically, multiple embryos are transferred to increase the likelihood of pregnancy. If more than four eggs develop into embryos, the donor may have the option of cryopreserving the remaining embryos for thawing and replacement in a later IVF cycle. (5)

   Three pivotal eases have marked the issues, progression, and struggling ideologies associated with litigation over the excess frozen embryos. The first was York v. Jones, heard in the Eastern District of Virginia in 1989. (6) This case involved a custody dispute between a couple participating in the IVF program, the Yorks, and the IVF clinic, the Jones Institute] After four failed attempts at achieving pregnancy, the Yorks subsequently moved to another state and sought to have the remaining embryos transferred to an IVF clinic in that state. (8) The Jones Institute refused to relinquish custody of the embryos. (9) The court held that an agreement signed by the Yorks created a bailor-bailee relationship with the Jones institute, stating that "all that is needed is the element of lawful possession however created, and duty to account for the thing as the property of another that creates the bailment[.]" (10) The holding reflects this court's view that embryos are property, and when an IVF clinic takes possession of the embryos, the clinic may refuse to allow the couple's embryos to be transferred elsewhere for implantation. (11)

   The next piece of jurisprudence was set in place in 1992 by the Tennessee Supreme Court in Davis v. Davis. (12) This case involved a dispute between a divorced couple over the disposition of seven frozen embryos in an IVF clinic. (13) Mr. and Mrs. Davis had experienced five ectopic pregnancies and seven failed IVF attempts costing over $35,000. (14) When adoption failed, the Davis' had their seven excess eggs frozen for future implantation attempts. (15) Before implantation could be performed, Mr. Davis filed for divorce. The only contested issue in the divorce was the disposition of the frozen embryos. (16) Mrs. Davis originally wished to have the embryos implanted into her own body but subsequently decided that she wished to have them donated to an infertile couple. (17) Mr. Davis opposed the implantation of the embryos into Mrs. Davis given that he did not wish to father any more children and, especially any child that would not live with both biological parents. (18) Additionally, Mr. Davis did not wish to donate the embryos to an infertile couple due to his inability to control the psychological trauma that child may suffer with that couple if they should, for example, divorce. (19) The Tennessee Supreme Court concluded that a more compelling interest lies in that of the party wishing to avoid procreation, assuming that the party wishing to become a parent had other reasonable means to do so (other than the embryos in question). (20) Citing the American Fertility Society guidelines, that the court stated, the embryos "are not, strictly speaking, either 'persons' or 'property,' but occupy an interim category that entitles them to special respect because of their potential for human life." (21) The absence of a preliminary agreement, case or statutory law, and the fact that Mrs. Davis did not want the embryos for implantation into her own body allowed for Mr. Davis' privacy interest to compel a verdict in his favor.

   Six years later, the New York Court of Appeals ruled on a similar case. Unlike the Davis case, in Kass v. Kass, at the time of the divorce proceedings the donor mother, Mrs. Kass, sought to implant the embryos into her own body. (22) This presented what would seem to be a stronger case for implantation. (23) After ten failed attempts at IVF, costing more than $75,000, the Kass' decided to have the five excess eggs from their final attempt frozen. (24) As in the Davis case, the donor father, Mr. Kass, objected to the implantation, raising his privacy interest through arguing the "burdens of unwanted fatherhood." (25) This case is distinguishable from the Davis case, though, given that the Kass' previously entered into a contract with the IVF clinic allowing the IVF clinic to use the embryos for biological research or discard them as the clinic sees fit, should the couple disagree as to the embryos disposition. (26) After stating that the embryos were not "persons" within the meaning of the constitution, the highest court in New York held that the intent of the parties was expressed clearly and unambiguously in the contract with the IVF clinic and as such should be presumed valid and binding. (27) The court applied practical principles of contract law to decide the case but added in a footnote that such a contract may be precluded due to substantially changed circumstances or void as to public policy. (28)

   In synthesizing these cases, it seems that where there is an absence of case law or statutory guidance, courts will look to whether the embryo is property. (29) If it is determined that the embryo is property, then it will be disposed of as such. (30) If it is not property, instead something entitled to special respect, then the interest of the parties are to be weighed when making the decision. (31) Where there exists a contract clearly stating the parties' intent as to the disposition of the embryos should a dispute arise, that contract seems to govern regardless of whether embryos are property. (32) But can an entity, which may not be property, with the potential for human life fit neatly into the confines of contract law or should such contracts be governed by a special set of principles?

2. EMBRYONIC MATERIAL AS PROPERTY

   What is property? Property rights evolved from a somewhat unitary concept, of material objects controlled by individuals, to the concept of an infinitely divisible bundle of rights--to minerals, air, light, access, water, expected returns, occupancy, exclusive use, etc., rights which are subject to multiple ownership and to numerous mixes of public ... and individual claims. (33) Various theories govern allocation of property. To exemplify how embryos would be viewed if they were merely property, one may examine embryos in light of both the labor and economic theories of property. It was from these two theories that much of today's property rights were born. (34)

   1. Labor/Lockean Theory Of Property

      The labor theory of property embodies the idea that everyone is entitled to the fruits of his or her labor. (35)...