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Home > The Legal Uncertainty Surrounding the Disposition of Frozen Embryos in American Divorce Proceedings

The Legal Uncertainty Surrounding the Disposition of Frozen Embryos in American Divorce Proceedings

Child custody battles and fights over the disposition of marital property are frequent occurrences during divorce proceedings. The enduring fight to maintain control and raise one’s children typically revolves around issues such as residency and visitation rights. Most often, the couple argues over which side is entitled to custody based upon a superior ability to provide for the best interests of the children. Similarly, the resolution of which partner receives marital assets comes down to a complex determination of entitlement based upon whether a particular asset was acquired prior to or after marriage and other factors. Entitlement determines the fundamental factor determining the personal rights of one partner vis-à-vis the other.

The advent of new scientific procedures like in-vitro fertilization and cryopreservation and their dramatic effect on traditional notions of family planning, however, have complicated the process of divorce in American courts. These procedures inject into divorce proceedings the issue of whether one partner’s right to reproduce and the frozen embryo’s right to life outweigh the other partner’s reproductive and privacy rights. Personal entitlement once again becomes a contentious issue in divorce proceedings. The sudden emergence of this technology has left family law scrambling to fill the gaps in existing jurisprudence to resolve the constitutional, statutory, and common law rights of individuals when making decisions regarding their families. Until legislatures throughout the country enact statutory law on point, the courts will continue to struggle to resolve these issues.

The law will continues to be molded by the facts and circumstances of each particular divorce and the personal views of the presiding judge, rather than upon the guidance of established legal precedent. The few courts that have expressed their views on the issue have been inconsistent in their characterizations of frozen embryos. These courts have adopted three divergent theories on the legal status of a frozen embryo:

  • Some have decided to grant frozen embryos all the legal rights of humans as they are biologically alive and have the potential to be born. This theory distinguishes the Supreme Court’s holding in Roe v. Wade on grounds that the embryos were created with the intent of producing human life and, consequently, no reproductive rights have been violated.
  • Other courts have recognized frozen embryos as property, advancing the argument that frozen embryos are akin to human tissue in their legal status as property.
  • In trying to reconcile the arguments made by both sides on the debate, a third position has been adopted by some courts that embryos require a special respect and status: not quite human life but something more than just mere property.

All three positions have been adopted in actual divorce litigation by courts. Most remarkably, all three positions were adopted by three different courts during the divorce proceedings of a single Tennessee couple in Davis v. Davis. In Davis, the husband sought a declaratory judgment that the frozen embryos were marital property jointly held by the couple, which would have the ultimate effect of preventing the wife from implanting the embryos without her estranged husband’s consent. At trial, the Circuit Court for Blount County adopted the position that it had an obligation to act in the best interests of the unborn child as parens patriae. Under such a theory, the Court was obliged to grant the estranged wife “custody” of the frozen embryos so that she could implant them and ensure their continued survival.

Upon the husband’s appeal, the Tennessee Court of Appeals reversed the trial court’s decision, holding that the embryos were joint property and the wife’s entitlement to implant the embryos, as the trial court decreed, would be contrary to public policy. It believed that such a decision would have the effect of forcing paternity upon Mr. Davis. As a result, the implantation could only proceed if both sides consented to the frozen embryos’ use. Noticeably absent from the Court of Appeals’ decision in the case was an explanation of whether one individual’s right to reproduce would ever outweigh the other’s right to not reproduce. When the Supreme Court of Tennessee entered into this debate, it rejected the embryo as property theory and instead created an intermediate status that afforded embryos special respect due to their human potentiality. Under this ruling, the ultimate disposition of the frozen embryo can only be determined after the court balances the Constitutional rights of all relevant individuals. Under some circumstances, this view would justify a court order’s order entitling a party the right to implant the frozen embryos, even though the Court ruled in favor of the husband in this particular case. Similarly, courts in other jurisdictions have been unable to consistently resolve the dispute between these competing views.

Although Embryonic Disposition Agreements have been heralded by some as an adequate way to preemptively decide the rights of parties if such a dispute arises, the validity of such agreements has not been authorized by statute in any state. These agreements can help resolve any lingering uncertainty and allow judges to decide cases based upon contract law principles rather than upon rights based arguments. But even the common law, upon which most American contract law is based, fails to resolve all the issues that may arise out of a marital dispute over frozen embryos.

First, contractual modification becomes complicated if one party changes their mind while the other remains steadfast in their support of the original contract. In such an event, the original contract may remain in place even though the contract does not reflect the wishes of both parties. Until both parties agree, one party might not be able to back out of an agreement to which they had previously consented.

Second, the standard form contracts that fertility clinics provide for their clients may include boilerplate that does not reflect the interests of one or both of the parties and can be unclear. In some situations, the couple seeking IVF services may improperly defer to the language offered by the better informed physicians at fertility clinics when reaching an agreement although these contacts my not reflect their own desires upon the break-up of the relationship.

Third, these contracts may be discarded by the courts as contrary to public policy as they determine the reproductive and familial rights of individuals. Finally, acceptance of these written agreements may lead the ultimate disposition of frozen embryos down a slippery slope where individuals may begin to seek to enforce contracts implied by law when an individual decides to seek in-vitro fertilization services.

Clearly, these principles of contract law are inconsistent with the reasoning behind entering into the embryonic disposition agreements in the first place as they interfere with an individual’s ability to reach personal decisions related to their personal reproduction. However, by relying on contract principles, courts can avoid the controversial characterization of the embryo as either property or life. Anyone considering IVF services should have any contract reviewed by a legal professional prior to signing and should consider all possibilities, including the possibility of divorce or separation, when reviewing any contract.

Until a clear legal consensus emerges on the issue, individuals cannot have any reasonable expectations about their legal rights when it comes to cryogenically preserved embryos. The unfortunate consequence of all of this is that, until the legal uncertainty related to the issue is resolved, family planning using frozen embryos will involve the risk that one partner may lose control over the implantation of frozen embryos against his or her own personal wishes.


The opinions expressed in this article are for general information purposes only and are not intended to provide specific legal advice or recommendations. If you have a family law matter that may involve the laws of Delaware and Pennsylvania, MacElree Harvey family law attorneys will help you to determine your best course of action. To schedule a consultation, please call 610-436-0100 or at [email protected].