Academic journal article Missouri Law Review

Embry-Uh-Oh: An Alternative Approach to Frozen Embryo Disputes

Academic journal article Missouri Law Review

Embry-Uh-Oh: An Alternative Approach to Frozen Embryo Disputes

Article excerpt


How can two cells--a sperm and an egg--generate so many issues? Consider this example: a couple has difficulty bearing children without medical assistance, (1) so they embark on the journey of in vitro fertilization ("IVF"). IVF, one of many forms of assisted reproductive technology ("ART"), (2) is a fertilization process wherein an egg and sperm cell are manually combined and implanted into the uterus of a female donor or surrogate. (3) After visiting a fertility clinic, (4) the couple decides to proceed with IVF and to cryopreserve, or freeze, unused embryos (5) to ease the IVF process should they attempt procreation again in the future. (6) Generally, the fertility clinic asks the couple to sign a contract--called a cryopreservation consent form--to determine the fate of their embryos in case of death, divorce, or other change in circumstance. (7)

Sometimes situations do change, and it is at this critical juncture--when donors have established their embryos' destiny but circumstances are not provided for via contract--where disputes arise and the law crumbles. (8) Suppose a couple divorces and the woman wants to implant the embryos against the man's wishes; should a court be allowed to make that type of decision? Alternatively, should a court be permitted to order disposal of the embryos or have the power to force the couple to give the embryos to research? Should a court deem the frozen embryos "life" or "persons," and if so, determine whether they have protectable constitutional rights? (9) To date, only a handful of states have addressed the issue of frozen embryo disposition, (10) and fewer states have enacted legislation to help courts navigate questions of the protectable interests of embryos, contract interpretation in this setting, and constitutional procreation rights. (11)

In Part II, this Note addresses the general background of domestic and international case law and legislation surrounding embryonic disputes. Part III then examines recent case law developments; specifically, it discusses the only existing frozen embryo dispute in Missouri. (12) Finally, Part IV offers a suggested approach for courts to use when addressing these increasingly complex cases.


Although a relatively new concern, frozen embryo disputes have generated a sizeable amount of case law outside of Missouri. Section A of this Part discusses the various approaches state courts use in determining the appropriate disposition of frozen embryos when a couple divorces or separates. Section B then discusses the few state statutes that bind courts when navigating embryonic disputes. Finally, Section C addresses scholars' recommendations, as well as international methods for avoiding frozen embryo disputes.

A. Methods State Courts Use to Determine Frozen Embryo Disposition

The United States Supreme Court has yet to address issues arising out of IVF procreation. (13) Without explicit direction, state courts are left to decide these complex issues, dealing with their citizens' most private concerns, on their own. Most courts have taken one of three approaches: the balancing interests approach, the contractual approach, or the contemporaneous mutual assent approach. (14)

1. The Balancing Interests Approach

The balancing interests approach seeks to resolve embryonic disputes by "considering] the positions of the parties, the significance of their interests, and the relative burdens that will be imposed by differing resolutions." (15)

In 1992, the Tennessee Supreme Court became the first major appellate court to consider embryo disposition issues. (16) In Davis v. Davis, a divorced couple disputed the custody of their frozen embryos. (17) Without any type of agreement or consent form completed during the IVF process, the court was left to "weigh the interests of each party to the dispute... in order to resolve that dispute in a fair and responsible manner. …

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