Courts Hammer Out Case-by-Case Solutions to Dilemma of Unused Embryos

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Date: Summer 2018
From: American Journal of Family Law(Vol. 32, Issue 2)
Publisher: Aspen Publishers, Inc.
Document Type: Article
Length: 5,910 words
Lexile Measure: 1520L

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Since the late 1970s, assisted reproduction law has been ever-changing, and by the time health care providers, assisted reproduction attorneys and legislators painstakingly reached consensus on best practices, advancements in assisted reproductive technologies (ART) and the evolution of family structures have rendered those best practices obsolete. Among the many legal questions arising from the growing use of assisted reproduction technology, perhaps none is more compelling than the disposition of unused embryos.

Some 620,000 cryopreserved embryos are in storage in the United States.

Just about every time a couple or a single person goes through in vitro fertilization (IVF) to have a child, embryos are created. This is true whether the couple is married or unmarried, same-sex or different-sex, or a single person trying to become a parent through assisted reproduction. In many IVF cases, more embryos are created than are immediately used. As increased accessibility, effectiveness, and societal acceptance expand the use of ART for family creation, more embryos are being created each year. According to the U.S. Department of Health and Human Services Web site (, some 620,000 cryopreserved embryos are currently in storage in the United States. Professionals in the field believe that the numbers reported to the CDC by reporting fertility clinics are an undercount and that the true number may be as high as 4 million (See Dave Snow, Alana Cattapan, & Francoise Baylis, Letter to the Editor, 33 Nat'l Biotechnology 909 (2015)).


Whatever the true number, the frozen embryos that are rapidly consuming fertility clinic and cryopreservation facility storage capacity fall into two broad categories: those that remain in the possession of their procreator(s), who in most cases are paying storage costs; and those that are for all intents and purposes "abandoned," whose procreators fail to pay storage costs--and may have dropped out of contact with the storing facility--yet have failed to grant express permission for the embryos to be destroyed. In either scenario, jurisprudence on these issues remains a work in progress.

The increasingly common use of cryopreservation, or freezing, of unused embryos has opened up a whole new arena in family law. Every divorce, dissolution, or estate planning matter must now consider the possible existence of frozen embryos and who has the legal right to determine their disposition. No federal regulations or statutes govern the disposition of frozen embryos created through ART, and the states follow a patchwork of legislative and judicial approaches to the various issues arising from the use and disposition of frozen embryos. Even California, which has a robust set of laws governing ART and related parentage issues, has no state statute specifically governing embryo disposition. (1)


Here is a typical scenario: Adam and Eve, a married couple battling infertility, create embryos through a process of IVF of Eve's eggs with Adam's sperm. These embryos are cryopreserved and stored. The stress of dealing with infertility takes a toll on the marriage, and the couple ultimately decides to divorce. Who gets the embryos? And, more significantly,...

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Gale Document Number: GALE|A541787096