Whose Embryo Is It Anyway?: The Need for a Federal Statute Enforcing Frozen Embryo Disposition Contracts

• DOI: http://doi.org/10.1111/fcre.12309
• Published date: 01 October 2017
• Author: Alexandra Faver
• Date: 01 October 2017

WHOSE EMBRYO IS IT ANYWAY?: THE NEED FOR A FEDERAL

STATUTE ENFORCING FROZEN EMBRYO DISPOSITION

CONTRACTS

Alexandra Faver

Affording a couple the right to decide what should become of their frozen embryos in the event they divorce is of the utmost

importance. The right to procreate, as well as not to procreate, has been observed as a constitutionally protected right under the

Fourteenth Amendment of the U.S. Constitution. The interference by the judiciary in overriding, superseding, or simply ignor-

ing disposition contracts is severely problematic. The parties have theoretically decided the best courseof action by addressing

potential future complications in disposition contracts. Not enforcing disposition contracts creates a lack of trust between the

in vitro fertilization (IVF) facility and the parties and between the parties themselves. Knowing the contract they are signing

may be thrown out if one party changes their mind, severely undermines contractual authority in assisted reproductive technol-

ogy. This Note proposes multiple psychological, legal, and medical safeguards to be implemented by IVF facilities in order to

ensure the parties enter into a valid and enforceable contract.

Key Points for the Family Court Community:

Only a handful of states have statutes addressing the enforcement of disposition contracts, some of which are at odds

with one another. There is currently no federal statute in place that addresses this issue.

Millions of Americans struggle with infertility issues every year. The average age for new parents over the years has

increased while the decline in fertility based on age has not changed.

As IVF treatments, as well as divorce rates, continue to increase, this issue will only become more prevalent in courts

around the country.

Creating a federal statute enforcing disposition contracts will afford parties engaging in IVF treatments resulting in fro-

zen embryos to have the autonomy to make decisions regarding potential future complications, including divorce.

Some state statutes in place provide a firm foundation for what should be included in a federal statute; however, they

should be combined and expanded to include psychological awareness and ensure that each participant is substantively

and procedurally protected.

Keywords: Assisted Reproductive Technology (ART); Cryopreservation; Disposition Contract; Divorce; Frozen Embryo;

Gamete; In Vitro Fertilization (IVF); and Psychological Counseling.

I. INTRODUCTION

Mimi and Stephen met while they were students at Harvard University.

1

After falling in love,

they decided to get married in 2010.

2

But tragedy struck just as their wedding day approached.

3

As

Stephen was driving in New York he had to pull over because he was overcome with such emotion

in finding out his soon-to-be bride was diagnosed with breast cancer.

4

In 2010, the same year as the

wedding, the couple went to the University of California, San Francisco (UCSF) Center for Repro-

ductive Health to begin their in vitro fertilization (IVF) procedure.

5

Fortunately for the couple, their

procedure produced five frozen embryos.

6

However, after their relationship took a turn for the worst,

Stephen filed for divorce in August 2013.

7

Today, Mimi is cancer free.

8

Nonetheless, her treatments have left her essentially infertile.

9

The

frozen embryos are her only chance of having biological children after her aggressive cancer treat-

ments, and thus, she decided to sue for the rights to the frozen embryos.

10

Stephen, however, did not

want the frozen embryos to come to fruition and wanted them to be thawed out.

11

After a highly

Correspondence: afaver0424@gmail.com

FAMILY COURT REVIEW, Vol. 55 No. 4, October 2017 633–647

V

C2017 Association of Family and Conciliation Courts