The Frozen Ones: Disputes, Divorces, and Dispositions

Couples who may have been unsuccessful in their efforts to conceive naturally have found ways to parenthood through assisted reproductive technologies. In vitro fertilization is one of the most complex processes these couples pursue, and it involves creating an embryo outside of the human body and then inserting it into the woman with the hopes of successful implantation. Under the circumstances, many embryos may be created and then frozen—or cryopreserved—to prolong the availability of the process to the couple for months or even years. However, a conflict can arise if the couple gets divorced, which begs the question: what happens to the frozen embryos? The answer to this question begins with how the state defines an “embryo” because this makes a difference regarding legal rights and the type of law to be applied. Embryos are generally defined as either property, human life, or an interim category between the two. Once an embryo is defined, a state court must then determine which approach it will use to answer the disposition question. There are three main approaches: the enforcement of informed consent agreements, the contemporaneous mutual consent approach, and the balancing competing interests test. Regarding how to define an embryo, this Note argues that states should place embryos in the interim category to respect their potential for human life. Furthermore, this Note advocates for states to require the donor parents to complete multiple informed consent agreements before starting the cryopreservation process. These forms should specifically address the couple’s disposition preference for any remaining frozen embryos in the event of a divorce. Since many couples who sign these forms may not realistically consider the possibility of divorce, this Note argues that changed circumstances should permit a court to reconsider the enforceability of such an agreement.