Rehabilitating Bioethics: Recontextualizing in Vitro Fertilization outside Contractual Autonomy

Article excerpt


As in vitro fertilization (IVF) and other reproductive technologies become increasingly prevalent, the legal and bioethical issues that inevitably accompany these new technologies are outpacing both legislative and judicial responses. (1) Thus far, legislatures hesitant to address the ethical uncertainties in IVF have been slow to adopt clear guidelines regarding the disposition of the frozen preembryos (2) that remain after an IVF procedure. (3) As a result, courts have been left to themselves to determine the best response when a divorce subsequent to IVF generates dispute over the disposition of remaining preembryos, (4) when one of the parties to IVF argues against the validity of signed consent forms, (5) or when public policy appears to argue against forcing donors to become parents against their will. (6) The disposition of frozen embryos implicates a variety of legal issues, and any fruitful consideration of these issues must operate alongside an analysis of contemporary bioethics. This Note proposes that the bioethical concerns intrinsic to IVF cryopreservation of preembryos militate against a traditional contract approach that turns on personal autonomy and freedom of contract.

Drawing upon contemporary bioethics and theological discourse, this Note suggests that the unique relationships resulting from the IVF process preclude the use of classical, contractual frameworks privileging individual autonomy. An alternative, teleological framework can recontextualize IVF within contract theory in a manner that better accounts for the intersection of IVF and the bioethical concerns that IVF necessarily implicates.

Under contemporary case law, contracts are often interpreted with an eye toward preserving individual autonomy. (7) By contrast, a teleological approach to contracts would favor for enforcement those contracts that successfully achieved the original telos, or purpose, underlying the given contract: in the case of IVF procedures, the development of a parent-child relationship. Ultimately, this Note argues that this underlying purpose radically informs the interpretation of contracts concerning preembryo disposition. Given this new hermeneutic, contract interpretation would be more likely to produce results consistent with both the intent of the parties at the time that the contract was formed and the principles of bioethics.

Part I of this Note describes the IVF procedure, focusing on those elements at the center of contemporary legal battles. In large part, the legal disputes concern the disposition of the cryopreserved preembryos that remain after the conclusion of the IVF process. In discussing these foundational issues, Part I also examines how the confusion surrounding the legal and ontological status of preembryos influences IVF litigation.

Subsequently, Part II examines the relevant case law to demonstrate the existing disconnect between contemporary bioethical issues and legal responses. Although only five state courts have ruled on the disposition of cryopreserved embryos, the resulting opinions illustrate the complex questions that often arise in such cases: whether preembryos are persons, property, or neither; which party should have decisional authority over the remaining preembryos; whether written consent forms pertaining to disposition should be enforced; the extent to which public policy issues should inform the legal discourse concerning IVF; and, finally, the degree to which party intent should be a factor in contract interpretation. Although the state courts reached different conclusions regarding preembryo disposition, for the most part their discourse framed the contractual analysis regarding IVF contract agreements around the language of individual autonomy prevalent in contemporary contract theory.

After exploring the relevant legal concerns, Part III navigates the current theological and bioethical terrain as it pertains to IVF; in particular, this discussion considers the different constructs of personhood and parental relationships at issue in new reproductive technologies. …