Disposition of Frozen Embryos in Family Law Cases

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Author: Tim Schlesinger
Date: Fall 2018
From: American Journal of Family Law(Vol. 32, Issue 3)
Publisher: Aspen Publishers, Inc.
Document Type: Article
Length: 4,990 words
Lexile Measure: 1840L

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Disputes about what to do with unused, cryo-preserved (frozen) embryos in family law cases have made headlines and formed significant precedent in the past several years. (1) These disputes have also illuminated the emotionally charged issue of what to do with frozen embryos when the couples who create them no longer share the mutual goal of having and raising children together. The various attorneys for the former fiance of the actress Sofia Vergara have tried several creative (thus far, unsuccessful) ways to attempt to gain "custody" of the unused frozen embryos the couple created when they were together. In a San Francisco case which garnered national media attention, Dr. Mimi Lee and her husband fought over whether or not Dr. Lee could have the embryos implanted for the purpose of having children. (2) A Missouri Court of Appeals case which also received national attention focused, for the first time, on the issue of whether or not a frozen embryo was a "person," in the context of Missouri statutes which declare, essentially, that an embryo is an unborn child. (3)


Infertility (4) is a significant national medical problem. It affects about 7.3 million Americans, or approximately one out of every eight couples of reproductive age. (5) This number does not include the growing number of same-sex male couples who desire to have children and who, in the vast majority of cases, must have embryos created if they want to have children genetically related to one of them.

One of the most common medical treatments for prospective parents struggling with infertility is in vitro fertilization (IVF) (6), a process in which the woman's eggs (ova) (7) are retrieved and fertilized in a petri dish, typically with the husband or partner's sperm. This process is intended to create numerous embryos that are then incubated and either transferred back into the intended mother's uterus for gestation and birth, or cryopre-served (essentially frozen) and stored for future use. (8) Every time a couple or a single person goes through IVF in order to have a child, the goal is to create embryos for immediate implantation, or to store for future use. This is true whether the couple is married, unmarried, same-sex, or a single person trying to become a parent through assisted reproduction. In the vast majority of cases, excess embryos are created, which are not immediately used. Fertility clinics across the United States are reporting a steady increase in IVF cycles, which means more embryos are being created each year. The most recent reliable statistics from the American Society for Reproductive Medicine (ASRM) estimate that at least 620,000 frozen embryos were in storage in the United States as of the end of 2013. (9) (These are the only the numbers reported to the CDC from reporting fertility clinics and the numbers are now five years old. Many professionals in the field believe the number is now more than one million.) Frozen embryos can survive and be viable for...

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