The Frozen Embryo: Scholarly Theories, Case Law, and Proposed State Regulation

Article excerpt

INTRODUCTION

Fertility experts have been able to create human embryos outside the body since the 1970s. However, both moral and legal questions still persist regarding the use of In Vitro Fertilization (IVF). Using IVF to assist individuals and couples having trouble procreating would be seemingly positive, but the procedure has resulted in serious unintended consequences that continue to trouble theologians, physicians, and the courts. The ongoing legal debate focuses on two principal questions: (1) whether a frozen embryo should be regarded as a person, property, or something else and, (2) how to best resolve disputes between gamete donors concerning disposition of surplus frozen embryos.

State legislators have taken widely divergent and often constitutionally suspect positions on both of these questions. Some state legislatures have avoided potential political repercussions by refusing to address these troubling questions and, instead, have deferred to the courts.

Because of the largely unresolved issues surrounding frozen embryos, preeminent legal scholars have written extensively in an effort to provide guidance to decision makers. The theories range from simple contract to complex constitutional analyses. In this Article, I will present the strengths and weaknesses of each of these theories. After an analysis of these theories, I will propose model legislation that would provide gamete donors with human dignity and legal certainty.

Section I of this article discusses the in vitro fertilization process, including the unintended consequences and who is responsible for those consequences. Section II explores the controversy over the proper legal status of the frozen embryo. Section III presents scholarly approaches to dispute resolution that include the Robertson Contract Theory, the Coleman Contemporaneous Consent Approach, the Feminist Position, and the Supreme Court's jurisprudence on the Right to Procreate and the Right to Not Procreate. Section IV focuses upon Israel's controversial Nahmani case, in which Israel's divided Supreme Court embraced a solution to embryo disputes. In Section V, I propose legislation to enhance the dignity of gamete donors and to resolve the issue of the disposition of abandoned embryos.

SECTION I

A. The In Vitro Fertilization Process

With the birth in 1987 of the first baby conceived outside a woman's body,1 science gave childless couples around the world a new hope for parenthood.2 For the first time, fertility experts could combine an ovum and sperm in a petri dish and create an embryo or pre-embryo that might become a "test tube" baby.3 Physicians labeled the revolutionary procedure in vitro fertilization ("IVF").4

To initiate an IVF procedure, a physician will administer hormonal treatments to the female gamete donor in order to stimulate her ovaries to produce an abnormally large number of eggs.5 During the patient's next ovulation cycle, the physician will use one of two methods to harvest the eggs.6 Through a minimally invasive procedure, the physician may remove the eggs by making a few small incisions in the patient's abdomen and extracting them, or may perform a vaginal aspiration using a suctioning needle.7 Neither method is foolproof or without its risks to the health of the patient.8 Because the patient faces both significant pain and a level of risk during each egg extraction, most elect to have more eggs extracted than they are likely to implant should issues arise with those eggs being implanted or they have a future desire for another baby via IVF.9

When the physician has harvested the eggs, she will attempt to fertilize them with the semen the patient has selected.10 If fertilization is successful, the physician will implant two or three embryos in the first IVF cycle.11 Any surplus embryos will be frozen for possible implantation in the future.12

B. Unintended Consequences

The IVF procedure has successfully enabled thousands of infertile heterosexual couples, gay couples, and single individuals to become parents. …