Academic journal article Duke Journal of Comparative & International Law

Frozen Pre-Embryos and the Right to Change One's Mind

Academic journal article Duke Journal of Comparative & International Law

Frozen Pre-Embryos and the Right to Change One's Mind

Article excerpt


Biological technology used for purposes of human reproduction has generated a number of issues involving contract law, genetic parenthood, and public policy. One such issue arises from disagreements about the fate of frozen embryos. This issue presents special challenges to the judicial process even though historically courts have had experience in applying reason to the most emotional of issues.

In recent decades, new methods of assisted reproduction using medical technology have enabled infertile couples to have a child who is biologically related to at least one parent. These technologies have also enabled individuals in same sex relationships and unmarried individuals to bear and raise children. Often labeled assisted reproductive technologies (ART), these techniques have become commonplace in modern, technologically sophisticated countries such as the United States, Israel, and the United Kingdom.

Disputes arising from the use of ART may involve couples or even three or more contestants. Among the ARTs that involve third parties are those utilizing artificial insemination of both married and unmarried women, sperm donation, and in vitro fertilization (IVF) involving egg or embryo donation. These techniques have required courts and legislatures to redefine the parent-child relationship--a task that becomes even more difficult when a child is brought into the world by a surrogate. (1) In the United States, most states have been slow to adopt legislation to resolve these issues; many states still have nothing more than their version of the 1973 Uniform Parentage Act, which includes only one section relevant to this issue: Section 5, on artificial insemination by donor (AID). (2)

This Article discusses the use of IVF by a husband and wife. This process involves the surgical removal of eggs from the wife and the in vitro fertilization of those eggs with the husband's sperm. Although this topic does not involve third parties to the conception of a child, like those attending uses of ART mentioned above, the legal issues involved are no less complex. Because IVF procedures may produce more fertilized eggs than can be implanted safely for gestation, a couple may leave unused pre-embryos (3) at the IVF clinic to be frozen and stored. It has been estimated that tens of thousands of pre-embryos are frozen each year. (4) This Article focuses on the legal issues that arise if the couple later divorces and one of them requests custody of the frozen pre-embryos, usually for future implantation either in the wife or in a surrogate, while the other wants them destroyed. (5)

These problems loom large for the couples involved, but the case law is also interesting for what it tells us about the importance of parenthood in the post-IVF world. In the United States, pre-embryo custody disputes have resulted in at least five reported cases in which courts have awarded the pre-embryos to the party opposing implantation. (6) In doing so, the courts stopped the process the parties began when they decided to create a new life. U.S. courts, however, have disagreed as to the reasons for their decisions and some of these courts have relied on questionable analogies that will be discussed later in this Article. In contrast, in Nachmani v. Nachmani, (7) the Israeli Supreme Court in 1996 awarded a couple's frozen pre-embryos to the wife, Ms. Nachmani, who was childless, so that she could attempt to implant the frozen pre-embryos in a surrogate. Control over the pre-embryos was Ms. Nachmani's sole means of fulfilling her desire to become a mother to a biologically related child, as she could no longer produce eggs. (8)

Current United States case law offers some support for the view that where the couple's frozen pre-embryos represent the last chance for one party to become a biological parent, the court should award the pre-embryos to that person. (9) In the United Kingdom, the comprehensive Human Fertilisation and Embryology Act (HFEA) (10) requires that the couple, at the time of IVF treatments, agree to the disposition of their frozen pre-embryos. …

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