Published in Family Law Quarterly, Vol. 46, No. 3 (Fall 2012) p. 397–418.
© 2012 by the American Bar Association. All Rights Reserved.
You Say Adoption, I Say Objection:
Why the Word War Over Embryo
Disposition Is More Than Just Semantics
JESSiCA R. HOFFMAN*
Couched in a halo of nutrient cells, an egg smaller than the dot on an “i” drifts
slowly down a Fallopian tube, one of a pair of narrow passages that leads from
a woman’s ovaries to her womb. Like a beacon guiding ships at night, the egg
sends forth a calling signal. A convoy of sperm—the remnants of an armada
that was once a couple of hundred million strong—sails into view, their long
tails thrashing vigorously. Lured by the chemical signal, several hundred of the
most energetic swimmers close in on the egg, their narrow tips unleashing a
carefully timed sequence of biochemical salvos. One substance dissolves the
jelly-like veil surrounding the egg. Another softens the egg’s tough outer shell,
preparing it for penetration. in the last moments before conception, a few dozen
sperm race to break through the final barricade.
One and only one succeeds.1
I. Introduction
The primitive process nature bestows on mankind to create an embryo
is fraught with challenges and not unlike the battles that take place in war.
For those would-be parents whom nature has failed, the process is an
everyday war that devastates relationships, demolishes health, and destroys
the basic human desires of parenthood.
Assisted Reproduction Technology (ART) gives people more options
for parenthood than ever before. it is now possible for a person to con* First-place winner in the Schwab Memorial Essay Contest; a J.D. candidate at Florida
Coastal School of Law, where she served as an intern in the Family Law Clinic. She is a student member of the ABA Family Law Section’s Assisted Reproductive Technology Committee;
and thanks Committee Chair Steve Snyder for his mentorship, and Professor C. Quince Hopkins
for support in the writing of this essay.
1. Philip Elmer-DeWitt et al., Treating Infertility: Making Babies, TiME, Sept. 30, 1991,
http://www.time.com/time/magazine/article/0,9171,973919-1,00.html.
397
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Family Law Quarterly, Volume 46, Number 3, Fall 2012
ceive an embryo, genetically related or not, and have that embryo carried
to term by a woman who is not related to the resulting child. These medical advances and the social norms surrounding them have outpaced our
legal system, bringing with them various issues. These issues include
defining the families created by ART and the rules needed to govern the
process.
This article narrows to one part of the ART process: the disposition of
excess embryos that result from ART. Part i examines the patchwork of
existing laws created in reaction to disputes concerning embryo disposition. Part ii discusses the two leading models commentators propose
should govern embryo disposition and which body of law should govern.
Part iii offers the simple solution of taking the best and most applicable
aspects of both models to create a system of rights and repeatable procedures to govern embryo disposition as needed today and in the face of
future medical advancements.
Many articles take the position that embryos are either property to
be governed by contract law or a person subject to adoption laws. This
article offers a different approach, which recognizes the strengths and
weaknesses of both arguments and suggests that the answer lies somewhere in between. By sidestepping the moral and political dilemmas, we
can move past the roadblock of classifying the status of an embryo and
instead identify which rights should attach to the parties involved in the
process. Moreover, instead of stalling on the procreational rights of the
“parents,” this article suggests skipping that step entirely because a parent’s right not to “procreate” is moot after an embryo is created.
II. The Need for Assisted Reproductive Technology
and the Current Status of Embryos
A. The ART of Making Babies
ART provides solutions for many different categories of people, including the medically infertile,2 same-sex couples, single parents, the genetically at-risk, and gender selectors.3 The most common category to use
ART is the medically infertile.4 Medical infertility is a disease of the reproductive organs that creates an inability or diminished capacity to produce
2. in the context of this article, infertility can be either medical or social. Social infertility
implies that a party might be able to medically reproduce; however, they lack either a partner
or are unable to biologically reproduce with their partner.
3. Debora Spar, Building a Better Baby Business, 10 MiNN. J.L. SCi. & TECH. 41, 44
(2009).
4. Id.
You Say Adoption, I Say Objection
399
a pregnancy, carry a pregnancy to term, or both.5 The last reported study
of infertile women reported 7.5 million affected—meaning, approximately
one in eight women suffer from infertility.6 For many jurisdictions, after a
woman is diagnosed with infertility, she is eligible for reproductive help
through the use of Assisted Reproductive Technology (ART).7 ART is a
customized medical concoction of services that includes procedures performed by fertility doctors and embryologists, donated reproductive tissue,
and large doses of genetic research and medical technology.8
As clinical and progressive as ART sounds, the processes and procedures falling under ART’s umbrella are complicated and to some, bizarre.
The process involves the use of terminology that makes many people
squeamish: sperm and eggs (donor, biological, or a combination of both),
combined in a Petri dish for several days until high-potential embryos
form and, through in-vitro fertilization (iVF), are transferred into a
woman’s uterus. Surrogacy9 often uses the entire gamut of ART services
to assist individuals in building a family. This term refers to the process of
someone other than the progenitors10 carrying the intended child to term.
5. Fast Facts About Infertility, RESOLVE, THE NAT’L iNFERTiLiTy ASS’N, Feb. 28, 2008
http://www.resolve.org/about/fast-facts-about-fertility.html (last visited April 28, 2012) (discussing fertility statistics compiled from the American Society for Reproductive Medicine
(ASRM), World Health Organization (WHO), and the American College of Obstetricians and
Gynecologists (ACOG)).
6. Compare Anjani Chandra et al., Fertility, Family Planning, and Reproductive Health of
U.S. Women: Data from the 2002 National Survey of Family Growth, 23 ViTAL & HEALTH
STAT. 25, 105, 108, 316 (2005), with Barbara Collura, Executive Director of RESOLVE,
Panelist at the American Bar Association (ABA) Section of Family Law 2011 Spring Meeting:
The infertility Patient is Now your Client (Apr. 9, 2011) (emphasizing that current numbers
suggest the 2002 number has increased dramatically and is closer to one in five women affected by infertility).
7. Frequently Asked Questions About Infertility, AM. SOC’y FOR REPROD. MED.,
http://www.asrm.org/Patients/faqs.html (last visited Apr. 28, 2012) [hereinafter ASRM].
8. ABA MODEL ACT GOVERNiNG ASSiSTED REPRODuCTiVE TECHNOLOGy § 102(1)-(2)
(2008) [hereinafter ART MODEL ACT], (proposed by the ABA Section of Family Law’s
Committee on Reproductive and Genetic Technology, approved by the ABA House of
Delegates in 2008, and proposing rules for ART issues, embryo status, and parentage).
9. Surrogacy involves the use of either a gestational or traditional surrogate (often called
carriers). A gestational carrier is a “woman into whom an embryo formed using eggs other than
her own is transferred” and a traditional carrier is a “woman who undergoes inseminations and
fertilizations of her own eggs in vivo.” See id. § 102 (16).
10. For purposes of this paper, the term progenitor refers to the person or persons who originally created the embryo with the intention to produce and raise a child. See id. § 102 (27)
(defining the same as “Participant”).
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B. The Problem: Too Much of a Good Thing Is
Not Always Wonderful
Despite popular belief, human reproduction is not a safe bet. Only
twenty percent of human embryos, regardless if using ART, survive to
implant in the uterine wall.11 While infertility doctors aim at producing
quality embryos, they also desire a resulting pregnancy. Therefore, the
end result of the complicated egg retrieval and insemination process is a
number of excess embryos, some of which are not chromosomally fit for
transfer to a woman’s uterus.12
By definition (and in some states by statute), patients who are eligible
to receive ART have already spent a year, if not longer, facing reproductive disappointment.13 it is no wonder they enter the process focused on
one step at a time. However, when the whirlwind of counseling, doctor’s
appointments, and strictly-administered medication ends in a thirtyminute egg retrieval procedure, patients find they have underestimated the
number of embryos that can result from the procedure. Faced with a
dilemma that is the very opposite of infertility, these patients generally
have four options for the embryos they created: use them all or cryopreserve them for later implantation, donate them to another couple, donate
them to research, or allow the clinic to destroy them.14 Fertility clinics will
present these options to patients by way of a consent form. Not all states,
however, allow for the destruction of embryos or donation of embryos to
research.15 States that do allow for donation to research might have legislation in place to regulate the process so progenitors can choose research
more in line with their beliefs.16
11. Elizabeth E. Swire Falker, The Disposition of Cryopreserved Embryos: Why Embryo
Adoption Is an Inapposite Model for Application to Third Party Assisted Reproduction, 35 WM.
MiTCHELL L. REV. 489, 504 (2009). See also Howard W. Jones, Jr. & Lucinda Veek, What Is
an Embryo, 77 FERTiLiTy & STERiLiTy 658, 659 (2002) (describing the three identifiable stages
of preembryo, embryo, and fetus and the viability at each stage).
12. Ann A. Kiessling, What Is an Embryo?, 36 CONN. L. REV. 1051, 1065 (2004).
13. Some states define infertility by statute. See, e.g., CAL. HEALTH & SAFETy CODE §
1374.55 (2010) and N.J. STAT. ANN. § 17:48-6xa (2010). Cf. FLA. STAT. § 742.15(2)(a)-(c)
(2010) (Florida does not define infertility through statute, but it requires participants to a gestational surrogacy agreement to be infertile).
14. Theresa M. Erickson & Megan T. Erickson, What Happens to Embryos When a
Marriage Dissolves? Embryo Disposition and Divorce, 35 WM. MiTCHELL L. REV. 489, 473
(2009).
15. See Ky. REV. ANN. STAT. § 311.715 (2010) (prohibiting destruction of embryos in publicly funded facilities); see also LA. REV. STAT. ANN § 9:122, 129 (2008).
16. CAL. HEALTH & SAFETy CODE § 12315 (2008) (regulates that progenitors receive precise information about the type of research their embryos will undergo). See also Janelle Wolak,
Stanford Biobank Pioneers New Way to Donate Embryos, THE STANFORD DAiLy, Apr. 11, 2011,
http://www.stanforddaily.com/2011/04/11/stanford-biobank-pioneers-new-way-to-donateembryos.
You Say Adoption, I Say Objection
401
Surprisingly, the complicated part of ART occurs less with the impressive medical technology and more with the inconsistent legal structure
attempting to govern it. There is no debate that ART is about creating families, but what happens when a couple who intended to use their embryos
to create a family no longer agree about the embryos’ fate? Despite best
intentions, desires change, and whether divorce, death, or financial and
emotional drain is the reason, some 400,000 existing, cryopreserved
embryos remain unused.17
Long before ART was a glimmer in the eyes of hopeful parents, the circumstances and intentions of people living together as a family often
changed, and the court system had to handle any remaining disputes.
Families created through ART are no different. They face the same issues
of divorce, custody, and family planning as non-ART enhanced families—if not more. These families deserve a unified body of law they can
depend upon before making the decisions they must make about their
excess embryos.
C. It Takes a Village to Create a Baby: Gamete Donation
A legal ramification of ART is that there could conceivably be six “parents” to a given embryo. One embryo could have a sperm donor, egg
donor, surrogate carrier, surrogate’s husband, and two intended parents.18
These parties present problems for the fertility doctors who must determine to which party they owe a duty19 and for court systems accustomed
to ruling in the best interests of the child. Adding to this confusion is the
fact that not all gametes are treated equally.20 in the past, courts have classified frozen sperm as property for purposes of ownership, control, transfer, and bailment.21 in contrast, embryos are not always considered to be
property, but they are not given the status of “person” either.22
17. David i. Hoffman et al., Cryopreserved Embryos in the United States and Their
Availability for Research, 79 (5) FERTiLiTy & STERiLiTy 1060, 1065–66 (2003) (summarizing
data from a survey performed by the Society of Reproductive Technology, which found that as
of Apr. 11, 2002, 396,536 embryos were being kept in frozen storage).
18. Jonathan B. Pitt, Fragmenting Procreation, 108 yALE L. J. 1893, 1897 (1999).
19. Dr. Preston Sacks, Bd. Certified Fertility Specialist, Presentation, ABA Family Law
Spring CLE Meeting (Apr. 7, 2011).
20. Steven H. Snyder, I’m a Divorce Lawyer! So Why Should I Read About ART?, 34 (2)
FAM. ADVOC. 6 (Fall 2011).
21. Id. Deceased persons may gift their sperm as property before death, Hall v. Fertility
institute of New Orleans, 647 So. 2d 1348 (La. 1994), and after their death, Hecht v. Sup. Ct.
of Cal., 20 Cal. Rptr. 2d 275 (Ct. App. 1993).
22. york v. Jones, 717 F. Supp. 421 (E.D. Va. 1989) (classifying frozen embryos as property under a bailment theory) but see Davis v. Davis, 842 S.W.2d 588, 595 (Tenn. 1992) (holding that embryos are neither property nor persons, but something in between).
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Family Law Quarterly, Volume 46, Number 3, Fall 2012
1. SPERM
AND
EGG DONATiON
Generally courts do not grant people property interests of the organs or
cells removed from their bodies.23 One court even expressed the fear that
the selling of human body parts in the market place would “comingle the
sacred with the profane.”24 yet this fear has little clout in the sperm-andegg donation world. Regardless of their legal status, sperm and eggs carry
a price tag and are considered the property of either the donor or the
donee.25 Because the high costs of ART have not diminished the demand
for its services, egg donors sometimes charge more for eggs with desired
traits.26 Generally, egg donors receive anywhere from $1,500 to $15,000,
however, “ivy League” donors might receive $25,000 to $50,000 per
egg.27 Sperm, the donation of which is a less time-consuming and invasive process, generally fetches up to $300.28
2. EMBRyO DONATiON
in contrast to donor sperm and egg, it is by unspoken agreement that
embryos carry some special status, making them unethical to sell.29 Which
begs the question, why treat them differently? This leads to delicate questions about what an embryo is and how embryos should be classified. One
school of thought is that embryos are cellular matter, which are eligible
for donation, and, as such, should be treated and governed similarly to
other human cellular matter, such as a liver or kidney.30 Another view is
that each individual embryo is a living being, subject to the same rights
and protections as other human beings, and governed by existing adoption
laws.31 As such, the fate of embryos is subject to a war of terminology
23. Moore v. Regents of univ. of Cal., 793 P.2d 479 (Cal. 1990) (holding that one cannot
have a property interest in one’s own body parts).
24. Id. at 497.
25. Spar, supra note 3, at 55.
26. See Roni Caryn Rabin, As Demand for Donor Eggs Soars, High Prices Stir Ethical
Concerns, N.y. TiMES, May 15, 2007, at F6. But see Marimer Matos, Human Egg Donor Files
Antitrust Class Action, Apr. 14, 2011, http://www.courthousenews.com/2011/04/14/35778.htm
(where an egg donor filed a federal antitrust class-action lawsuit against the three organizations
that monitor and regulate reproductive technology for capping the price donors may charge for
their eggs. She argues that the guidelines are based on market rates for sperm donation and do
not take into account the added encumbrances and health risks of the egg-donation procedure).
27. Sharon N. Covington & William E. Gibbons, What Is Happening to the Price of Eggs?,
87 FERTiLiTy & STERiLiTy 1001, 1002 (2007).
28. Ethics Committee of the American Society for Reproductive Medicine, Financial
Compensation of Oocyte Donors, 88 FERTiLiTy & STERiLiTy 305, 306 (2007).
29. Michelle L. Anderson, Are You My Mommy? A Call for Regulation of Embryo
Donation, 35 CAP. u. L. REV. 589, 604 (2006).
30. See generally Susan L. Crockin, The Embryo Wars: At the Epicenter of Science, Law,
Religion and Politics, 39 FAM. L.Q. 599, 602 (2005).
31. LA. REV. STAT. ANN. §§ 9:123–33 (2008).
You Say Adoption, I Say Objection
403
where the procedural differences between donation and adoption dictate
how people establish or terminate their interests and rights in the embryos.
D. The Road to an Uncertain Legal Status
Disputes concerning frozen embryos generally arise when the progenitors divorce or otherwise end their relationship.32 Davis v. Davis was the
first case to bring this particular issue before the court.33 The court in
Davis employed a balancing test, weighing the interests of the father who
did not wish to procreate against the interest of the mother who wanted to
donate the embryos.34 While ruling in favor of the father, the Davis court
noted that a contract identifying the parties express interests would be useful in determining future embryo disputes.35 As a result, the next dispute
to arise in court, Kass v. Kass, involved such a contract. Citing Davis, the
Kass court upheld the parties’ wishes as stated in the contract.36
The American Bar Association’s Model Act on Assisted Reproductive
Technology (ART Model Act) and The American Society for
Reproductive Medicine (ASRM) suggests an embryo is subject to disposition by its progenitors.37 Despite this guidance, there exists a spectrum
in which courts classify embryos. At one end of the spectrum is the idea
embryos are a “Juridical Person” subject to constitutional protection. On
the other end, courts view embryos as genetic material that can be contracted for, transferred, and sold. in the middle, is the “Deserving Special
Respect” approach, which gives a lot of discretion to the court.
32. For an embryo dispute not involving a battle between the progenitors or donors, see
BONNiE STEiNBOCK, LiFE BEFORE BiRTH: THE MORAL AND LEGAL STATuS OF EMBRyOS AND
FETuSES, 212–13 (1992) (explaining the dilemma of the high-profile couple Mario and Elsa
Rios who died in a plane crash leaving their frozen embryos to Mario’s son from a former marriage. The dispute concerned the possibility the embryos could be heirs to the Rios estate). See
also Sandra Blakeslee, New Issue in Embryo Case Raised Over Use of Donor, N.y. TiMES, June
21, 1984, http://www.nytimes.com/1984/06/21/us/new-issue-in-embryo-case-raised-over-useof-donor.html (where it was revealed that the embryos were created using donor sperm).
33. Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).
34. Id. at 603–04.
35. Id. at 597 (court’s dicta stated “an agreement regarding the disposition of any untransferred preembryos in the event of contingencies (such as the death of one or more of the parties, divorce, financial reversals, or abandonment of the program) should be presumed valid and
should be enforced between the progenitors.” Note that the court did not state these agreements
are permanent, but that they could be modified by both parties when their intentions change).
36. Kass v. Kass, 696 N.E.2d 174 (N.y. 1998).
37. ART MODEL ACT, supra note 8, § 102(10) (defining embryos as “a cell or group of
cells . . . that has the potential to develop into a live born human being. . .”); ASRM Ethics
Committee Report, American Society for Reproductive Medicine: defining embryo donation,
available at http://www.asrm.org/publications/ detail.aspx?id=2320 (last viewed Apr. 28, 2012)
(stating “embryos are deserving of special respect, but they are not afforded the same status as
persons.”).
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Family Law Quarterly, Volume 46, Number 3, Fall 2012
1. THE EMBRyO
AS A J uRiDiCAL
PERSON
Louisiana has defined frozen embryos as juridical persons who may not
be destroyed or donated to science and, therefore, must be placed for
adoption.38 At this time, Louisiana’s statue remains uncontested; however, it is unclear whether the statute would survive constitutional scrutiny
on two grounds. First, the law has made it clear that embryos are not persons,39 which means this statute might conflict with a woman’s constitutional right to have an abortion. it is illogical to give an embryo constitutional protection, only to remove that protection once the embryo has been
placed into a woman’s uterus.40 Second, Louisiana’s statute could also be
considered overbroad. For instance, giving an embryo the constitutional
status of “person” could open the possibility that errors committed by the
embryologists or fertility doctors could result in criminal charges of
wrongful death. Moreover, if we attach the same rights to frozen embryos
as we do to people who age, how do we treat an embryo that has been
frozen for eighteen years? Does that embryo now have a constitutional
right to vote or be emancipated from its parents? Besides the illogical constitutional implications, the proclamation that an embryo at this stage of
development is a person is in direct contrast to proven medical science.41
2. THE EMBRyO
AS
PROPERTy
Linguistically, courts rarely choose the word property to classify
embryos, however, in application, they often use property concepts to
resolve embryo disputes.42 Consider the case, York v. Jones, where progenitors wished to have their frozen embryos transferred to another state,
but their clinic refused. The court looked to the signed agreement and held
that it created a bailor-bailee relationship from which the yorks’ could
recover under property theory.43 As property of the progenitors, the yorks
had the right to make decisions about their embryos.44
Likewise, while the court in Kass originally used family law principles
to resolve a dispute over embryo disposition, on appeal, the court applied
38. LA. REV. STAT. ANN. §§ 9:123–33 (2008) (stating that a “fertilized human ovum is a
juridical and biological person under Louisiana law”).
39. Roe v. Wade, 410 u.S. 113 (1973) (rejecting the view that embryos are legal persons
from the moment of conception).
40. Id. Roe would kick in once the embryo is implanted, and the embryo would not have
constitutional protection until the time it becomes viable.
41. See Kiessling, supra note 12, at 1063 (describing the cellular stages of “embryos” and
their potential to turn into any cell within the body).
42. Jessica Berg, Owning Persons: The Application of Property Theory to Embryos and
Fetuses, 40 WAKE FOREST L. REV. 159, 212–13 (2005).
43. york v. Jones, 717 F. Supp. 421, 425 (E.D. Va. 1989).
44. Id. at 427.
You Say Adoption, I Say Objection
405
contract law.45 The court stated that embryos46 are not “persons” and the
progenitors’ express agreement governs.47 The court in Kass had the
benefit of referring to the Davis court’s opinion, which suggested prior
written agreements outlining the wishes of the progenitors are enforceable
as long as procreational rights do not come into play.48
3. THE EMBRyO
AS
DESERViNG
OF
SPECiAL RESPECT
AND
PROTECTiON
The Davis court created a compromise between the two potentially
irreconcilable classifications. While recognizing an embryo’s potential for
“burgeoning” human life, the court determined embryos deserve special
respect above that of mere human cells.49 However, potential alone was
not enough to classify an embryo as human life, thus they should not be
afforded personhood rights.50 using this reasoning, the court held frozen
embryos are neither “persons” nor “property,” but instead they exist
somewhere in between.51 Additionally, the court held that although an
embryo is not classified as property, progenitors had an interest in ownership.52 This decision had two effects: it gave progenitors the right to make
decisions regarding disposition, and it recognized a progenitor’s right to
claim not to be a genetic parent.
On the surface, Davis appears to be a good solution to the matter of
handling disputes over embryo disposition. As stated earlier, the progenitors of embryos deserve a body of law they can rely upon when making
the decision of what to do with their excess embryos. While many disputes concerning frozen embryos would benefit from a case-by-case
analysis, the effect of too much judicial discretion is that the resulting case
law is unpredictable and unreliable.
in summary, despite uncertain case law and statutes that vary greatly
among states, we can still make certain conclusions about the status of
embryos today. At this time, the united States Constitution does not recognize an embryo as a person, but it does prohibit the buying and selling
of human tissue and potential human life. Additionally, while state courts
sometimes label embryos as property, they do not assign personhood sta-
45. Kass v. Kass, 696 N.E.2d 174, 180 (N.y. 1998).
46. Id. The Kass court used the term “pre-embryo,” which, according to the medical field,
is the correct term. See Kiessling, supra note 12. Florida is the only state to accurately use the
term “pre-embryo” in legislation. See, e.g., FLA. STAT. § 742.11(2) (2010).
47. Kass, 696 N.E.2d at 179.
48. See Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).
49. Id. at 595.
50. Id.
51. Id. at 597.
52. Id.
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Family Law Quarterly, Volume 46, Number 3, Fall 2012
tus to them.53 Finally, contracts expressing progenitors’ wishes are generally enforced, unless the procreational rights of one party to the contract
are implicated.54
III. Term of ART: Two Competing Models Governing Embryo
Disposition (and how, in application, they are almost the same)
An embryo for “adoption” persuades society to classify embryos as
persons and prompts the legal community to apply personhood theories to
them. in contrast, an embryo for “donation” suggests either a property or
quasi-property classification. using the word “adoption” in the context of
embryo donation creates misleading expectations in both donors and
donees, making the practice more than just a battle of mere semantics.
A. Adoption’s Illogical Application
Traditional adoption law is not a logical framework from which to govern embryo disposition.55 Many states consider prebirth agreements to
adopt a child void as against public policy—meaning embryos cannot be
legally adopted.56 in addition, all states, but Alabama, prohibit the termination of parental rights prior to birth.57 The policy reasons for establishing a waiting period before genetic mothers relinquish their parental rights
to their biological child do not apply to the progenitors of embryos.
Applying the waiting period policy, thus the lack of ability to determine
legal parentage of a child prior to birth, could mean that embryo donors
could demand the child back after the donee had either given birth or commissioned a carrier to give birth.
Applying the adoption model to donated embryos creates inconsistent
treatment of ART parties. For instance, if an embryo’s progenitors use
donor sperm and a donor egg to create an embryo, they do not have to
undergo the intricacies of adoption, such as home studies and psychological testing.58
53. Louisiana is the only state to enact legislation calling an embryo a person. See supra
note 38. Former President George Bush has also advocated treating embryos as persons. See
Anderson, supra note 31, at 604 (citing President’s Remarks on Bioethics, 41 WEEKLy COMP.
PRES. DOC. 875 (May 30, 2005)).
54. Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992); see also Litowitz v. Litowitz, 10 P.3d
1086, 1087 (Wash. Ct. App. 2000) (holding that the court would not force a person to become
a parent if they did not want to be a parent).
55. A law dictionary defines the term “Embryo Adoption” as slang, (stating “The process is
not considered to be a legal adoption because American law does not treat embryos as children.”). See Adoption, BLACK’S LAW DiCTiONARy (9th ed., 2009).
56. Falker, supra note 11, at 511–12. See also uniform Adoption Act, which only allows
valid surrender and consent to adoption after the child’s birth.
57. ALA. CODE § 26-10A-13 (2010).
58. in the case of iVF alone, progenitors do not have to undergo physiological testing.
You Say Adoption, I Say Objection
407
Adoption law is fraught with its own issues and is not yet up to the
complexity of issues ART procedures present. in addition, ART law is
developing quickly under an intent standard—a standard that does not
currently exist in adoption law. it would be confusing for courts to apply
this standard when terminating parental rights because both the original
progenitors and the embryo donees have the intent to create a child.
A better framework in which to place embryo donation is within the
laws governing gestational surrogacy, also known as gestational carriers.
Well-established case law, and even statutes, regulate the termination and
granting of parental rights, based upon the intentions of the party wishing
to parent.59
B. Property and Something in Between
The true issue in embryo disposition is how to balance the interest in
protecting the developing embryonic life with the progenitor’s interests in
rights over potential offspring. Recognizing embryos as property would
allow courts to use an existing body of law to assign rights and settle disputes. This is a clean solution that would allow progenitors to confidently
prepare binding contracts for the disposition of their embryos in case of
donation, divorce, or death. The recognition of embryos as property could
also allow for reliable termination of parental rights and the possibility of
issuing a nonparent status to one of the creators.60 Likewise, if we are to
apply a “quasi-property” classification, we still need to know what rights
and protections to give.
1. CONTRACTS V. PROCREATiON
Classifying the status of embryos has been a taboo topic for various
courts to address. yet, courts are willing to allow embryos to be destroyed
in order to support either a contractual agreement or the right of one progenitor not to procreate.61
On the surface, regulating embryo disposition using contract law is
logical. Documenting the express wishes of the progenitors during the
creation of the embryos and allowing for modifications of those wishes for
However, many states require that parties going a step beyond iVF and using a surrogate must
get counseling first.
59. CHARLES P. KiNDREGAN, JR. & MAuREEN MCBRiEN, ASSiSTED REPRODuCTiVE
TECHNOLOGy 53 (2d ed. 2011); see also u.P.A. § 704(a), 9B u.L.A. 356, 33, and Johnson v.
Calvert, 5 Cal. 4th 84 (1993) (ruling that intent is one element out of three used to determine a
child’s parentage).
60. Eric Steiger, Not of Woman Born: How Ectogenesis Will Change the Way We View
Viability, Birth, and the Status of the Unborn, 23 J.L. & HEALTH 143, 160–61 (2010). See also
In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Ct. App. 1998).
61. Davis v. Davis, 842 S.W. 2d 588 (Tenn. 1992).
408
Family Law Quarterly, Volume 46, Number 3, Fall 2012
embryo disposition is a simple method for preventing embryo disputes.
The problem occurs when the original wishes of the progenitors change
and the parties cannot agree on the modifications. in these cases, courts
are reluctant to enforce contracts that make a progenitor a parent against
his or her will.62
in cases of embryo disposition after divorce, courts often rule a party
cannot be forced to become a parent.63 However, applying liberty rights to
embryo disposition detracts from the true legal issue, which is the disposition of specific embryos, not the embryo creator’s right to reproduce.64
under both a personhood theory and a property theory, the issue of procreation is moot. under the personhood theory, by the time this type of
dispute arises, embryos have been procreated. Therefore, to be consistent
with the movement behind personhood theories where life begins at conception/procreation, neither parent has the right to avoid biological parenthood if they have willingly participated in procreative activities.65
Therefore, the issue is not one of forcing procreation, because the property in question already exists by the time of dispute. instead, the issue is
similar to a custody agreement and property division, which might or
might not rely on contractual enforcement.
Focusing on the procreational liberties of the progenitors presents
another set of constitutional issues. if we do not want the government to
intrude on a person’s decision as to whether or not to bear a child,66 then
courts cannot rule in favor of one party’s procreational rights over the
other’s. This places a burden on rights, which is unconstitutional without
a narrowly drawn, compelling state interest.67
instead of focusing on how to classify an embryo, a slippery slope that
leads into the abortion debate, we should focus on the interests or rights
we want to assign to each entity in the ART process.
2. EMBRyOS
AS
PROPERTy iNTERESTS
Most of today’s property rights derive from the utility and labor theories of property.68
62. Shelly R. Petralia, Resolving Disputes Over Excess Frozen Embryos Through the
Confines of Property and Contract Law, 17 J.L. & HEALTH 103, 111–12 (2002–03).
63. Davis, 842 S.W.2d 588.
64. Jessica Berg, Owning Persons: The Application of Property Theory to Embryos and
Fetuses, 40 WAKE FOREST L. REV. 159 (2005).
65. Susan B. Apel, Cryopreserved Embryos: A Response to “Forced Parenthood” and the
Role of Intent, 39 FAM. L.Q. 663, 680 (2005).
66. Eisenstadt v. Baird, 405 u.S. 438, 453 (1972) (where Justice Brennan states that the
right to privacy means being free from the government intruding upon a person’s right to have
a child).
67. Roe v. Wade, 410 u.S. 113 (1973).
68. See Petralia, supra note 62, at 107.
You Say Adoption, I Say Objection
409
Property rights include the right to control, possess, use, exclude, and
alienate.69 intended parents consider embryos their property to control.70
Therefore, people will be less likely to create embryos if they lose this
control over them. Because the existence of more embryos has the potential to provide more solutions for infertile couples, and allow for medical
research that might cure disease (both things that are good for society), the
utility theory of property recognizes embryos as a property interest. The
problem with this theory is that it does not give an interest to any particular party involved.
in contrast, the labor theory prioritizes interests based upon those who
might wish to assert a claim of ownership. For instance, the labor theory
suggests gamete providers, intended parents, and carriers all have invested labor into the creation of the embryos. However, the gamete providers
receive compensation for their labor instead of property rights. And, if not
compensation, the carrier and fertility physician act as a trust or bailor
until the process is complete.
The labor theory also issues a hierarchy between the two progenitors.
under this theory, one who exerted the most labor is the top contender for
superior property rights. However, an important component of the labor
theory is that it values “use.”71 Therefore, in the event the party who exerted the most labor would allow the product of such labor to spoil, property rights transfer to the party who wants to use the product. Consequently,
under the labor theory, where one progenitor of an embryo does not wish
to give the embryo life, property rights to that embryo reside in the progenitor who added value and wishes to use it.72
The fear of using property interests to govern embryos is that we will
treat embryos as slaves or commodities.73 it is possible to separate the
property interest to transfer embryos from the marketability of embryos.
An example is that parents have property interests in their children: they
may exclude them from others74 and they may also transfer interest
through custody arrangements and adoption. The point is that even though
parents have a right to these interests, they still may not sell their children.
Which model prevails? This article suggests neither model can accomplish the needs of embryo disposition alone. The needed solution includes
one that does not offend current public policy, one that balances both the
69. Berg, supra note 64, at 200.
70. Id. at 188.
71. Joan E. Schaffner, Patent Preemption Unlocked, 1995 WiS. L. REV. 1081, 1088 (1995).
72. Petralia, supra note 62, at 110.
73. Spar, supra note 3, at 47.
74. Troxel v. Granville, 530 u.S. 57 (2000) (holding a fit biological parent has the right to
restrict and control visits by grandparents).
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Family Law Quarterly, Volume 46, Number 3, Fall 2012
interests of the embryo as a future child and the ownership interests of the
progenitors, and one that allows for a greater predictability in the outcome
of embryo disputes.
IV. Adopting ARTful Solutions to Embryo Disposition
A. No Publicity Is Good Publicity
As it stands, ART recipients are viewed as egotistical, over-educated,
freeloaders with too much money on their hands and no respect for life or
the interests of the children they wish to produce.75 The doctors who facilitate these procedures are criticized for promoting the exploitation of
women and the murder of children.76 The donors and surrogates who make
dreams come true are ridiculed for selling their bodies and receiving payment for a service that continues twenty-four hours a day for approximately forty weeks.77 These common misconceptions can only lead to one conclusion: the entire ART spectrum could benefit from a little public relations
consulting.
The legal and the medical communities must combine efforts to remedy the processes that create the negative perceptions surrounding ART.
Only then will courts be able to receive the compromises to public policy
it needs to correctly classify embryos and successfully regulate their disposition. These remedies include acknowledging ART as a process
involving monetary transactions, regulating those transactions to allow for
expanded access to ART procedures, addressing the best interests of
future children by creating effective donor registries, and regulating procedures that lead to the potential for socially taboo circumstances.
75. Derived from a brief internet search and provided to demonstrate public misconception:
See generally Is Infertility a Public Health Problem? Jan. 7, 2011, http://theassassinbug.com/
2011/01/07/is-infertility-a-public-health-problem (blogging that the “need to create something
with your genetic imprint is egotism in the highest degree.”); ONLiNE MEDiCAL DiCTiONARy,
http://medical-dictionary.thefreedictionary.com/endometriosis (acknowledging that endometriosis, the leading cause of infertility, is often called the “educated career-woman’s
disease); Re: Stop Br(L)eeding off my income!! Apr. 24, 2011, http://www.thechildfreelife.
com/forum/viewtopic.php?f=4&t=12086&start=10 (posting of Christine to vfitz, answering the
question “[W]hy. . . should people PAy for other people who have CHOSEN a freeloading
lifestyle?”); Elizabeth Marquardt, Kids Need a Real Past, CHiCAGO TRiB. May 15, 2005, http://
www.americanvalues.org/html/donor.html.
76. See B C Heng, Should Fertility Doctors and Clinical Embryologists Be Involved in the
Recruitment, Counseling and Reimbursement of Egg Donors?, 34 J. MED. ETHiCS 5 (2008) (stating that fertility doctors often act as the “middleman” in the transaction of eggs).
77. See, e.g., Heather Murphy-Raines, Should Surrogates Be Paid? THE STiR, A CAFé MOM
BLOG Mar. 22, 2011, http://thestir.cafemom.com/in_the_news/117569/should_surrogates_be_
paid (mocking the critics who feel surrogates should not be paid, Heather writes “you want to
help, but pregnancy is work. it’s a strain on any woman, yet this back-breaking, 24-hour-a-day,
exhausting work is not valued enough to merit minimum wage in some states. you’re just a vessel so that another couple may have the gift of parenthood.”).
You Say Adoption, I Say Objection
1. BuyiNG
THE
PROMiSE
OF A
411
CHiLD
A child is priceless. We “adopt” orphaned children into our homes,
“donate” sperm and eggs, and “lend” wombs to prospective parents in
need.78 Society does not accept the idea of paying for our children—however, semantic debates aside, the reality is that each of these practices
involve the exchange of money.79
With the advancement of ART, hope springs eternal for people wishing to have a child of their own. However, that hope also brings out individuals seeking to reap the benefits of an unregulated market, or as the
media frequently terms it, the baby-business.80 Despite the fact that ART
services are exchanged for money, participants are reluctant to call it a
commercial transaction.81 We must acknowledge that this market exists,
however, in order to protect ART’s ability to provide a valuable solution
for those who can benefit from the technology.82 By establishing guidelines, we can meet the needs of donors and carriers and provide critics of
such payments with the option of becoming better informed about the reasons for compensation.
2. ART
FOR
ALL, ALL
FOR
ART
Americans have a fascination with high-priced commodities.83 The
“American Dream” gives society access to those commodities. Part of the
mystique of ART is the high cost of its services, yet ART’s downfall is its
limited access to society as a whole. Even with a low success rate, progenitors can spend between $50,000 and $100,000 on the chance to have
a baby.84 The myth is that only the wealthy and elite can afford the luxury of ART’s benefits. The reality is that prospective parents, desperate to
have a child, will sell their home and borrow whatever they can get to buy
the promise of a child.85
78. See Spar, supra note 3, at 48.
79. Id.
80. DEBORA L. SPAR, THE BABy BuSiNESS: HOW MONEy, SCiENCE, AND POLiTiCS DRiVE THE
COMMERCE OF CONCEPTiON (2006). See also Spar, supra note 3, at 47 (stating that although the
fertility market is difficult to quantify, the average costs of iVF alone suggest that ART services in the united States cost at least $1.7 billion, without considering the added costs of
sperm/egg sales, legal fees, or surrogacy fees).
81. See Spar, supra note 3, at 43.
82. Id.; see also Sonia M. Suter, Giving in to Baby Markets: Regulation without
Prohibition, 16 MiCH. J. GENDER & L. 217, 236 (2009) (warning about power imbalances in an
unregulated market).
83. Amar Bhidé, Why Aren’t You Saving Money?, N.y. TiMES, OP. PAGES, ROOM FOR
DEBATE, Feb. 8, 2011, http://www.nytimes.com/roomfordebate/2011/02/08 (suggesting that
America was founded on the idea that the finer things in life were not only for the rich).
84. Spar, supra note 3, at 51.
85. See Joan Caplin, Baby or Bust, 35 (5) MONEy 126, 126–130 (May, 2006) also available
at http://money.cnn.com/magazines/moneymag/moneymag_archive/2006 (written by a school
412
Family Law Quarterly, Volume 46, Number 3, Fall 2012
if ART could resolve the inequality of access to its services, perhaps
the public opinion would mount in its favor. That is why proper regulation of embryo donation is so important. Embryo donation reduces the
costs of ART services because donees skip some of the steps and expenses of egg retrieval.86 Regulating the amount of money donors and carriers
receive might, as critics suggest, reduce the number of participants adding
to the pool. However, this regulation would ensure that the willing donors
and surrogates remaining are acting in the socially tolerable view of
ART’s goal: to create families.
Other areas for increased access for all include expanding insurance
coverage to include iVF cycles for those diagnosed as medically infertile87 and better education about the options for embryo donation, which
significantly reduces the costs of the entire ART process.
3. My DADDy’S NAME iS DONOR88
Proponents of “embryo adoption” argue that the best reason for using
adoption law to regulate ART is because it has had time to make and remedy its mistakes.89 While not the most reassuring of arguments, it is clear
that in the area of tracking donor identities, ART is traveling along the
same path of destruction.
Sperm donations have occurred for more than a century and generate
30,000 and 60,000 conceptions every year.90 While these donations began
as anonymous, the spread of AiDS in the 1980s prompted the need for
clinics to collect personal information and medical histories of sperm
donors. Sperm clinics now allow their clients to pick between an anonyteacher who put her iVF treatments on her family’s credit card in order to play the “gamble” of
having a baby). Cf. Judith F. Daar, Regulating Reproductive Technologies: Panacea or Paper
Tiger?, 34 HOuS. L. REV. 609, 629–31 (1997).
86. Charles P. Kindregan, Jr. & Maureen McBrien, Embryo Donation: Unresolved Legal
Issues in the Transfer of Surplus Cryopreserved Embryos, 49 ViLL. L. REV. 169, 171 (2004).
87. Lynn J. Bodi, Panelist, Oh What A Relief It Is—An Analysis of Insurance Issues in
Surrogacy, ABA Family Law CLE Conference (Apr. 9, 2011) (speaking as the original attorney representing two surrogate mothers who sued their health insurance company. The result
was that the Wisconsin Supreme Court ruled insurance companies could not deny coverage to
surrogate mothers). See also MercyCare ins. Co. v. Wis. Comm’r of ins., 786 N.W.2d 785 (Wis.
2010).
88. Elizabeth Marquardt et al., My Daddy’s Name Is Donor: A New Study of Young Adults
Conceived Through Sperm Donation, iNSTiTuTE FOR AMER. VALuES (2010), http://www.familyscholars.org/assets/Donor_FiNAL.pdf (report released by the Commission on Childhood’s
Future, tracking the effects on children conceived using donor sperm. The name of the report
came from t-shirts a lesbian couple made for their son to wear). See also Elizabeth Marquardt,
My Daddy’s Name Is Donor, http://www.americanvalues.org/html/donor.html.
89. Molly Miller, Embryo Adoption: The Solution to an Ambiguous Intent Standard, 94
MiNN. L. REV. 869, 890 (2010).
90. Ross Douthat, The Birds and the Bees: Via the Fertility Clinic, N.y. TiMES, May 30,
2010, at A19.
You Say Adoption, I Say Objection
413
mous or known donor, but there is no method in place to require sperm
donors to keep their medical history information current.91
Conversely, egg donations, which contribute to roughly 6,000 births
per year, began with known providers.92 However today, many egg donation clinics offer the option of being an anonymous donor.
At the very least, children born from donor material need access to pertinent medical information and ancestry at the time of donation. An added
bonus would be the requirement that donors automatically update a registry with new, relevant medical information, including death.93 The ABA
Model Act suggest what should be included in a national registry, including retention of relevant records until the resulting offspring reach the age
of majority and established procedures to allow for information disclosure
based on mutual consent.94
it is estimated that one million American adults are the biological children of sperm donors.95 Because sperm donors can contribute enough
sperm to create many children, the often-cited concern is the risk that the
resulting children will meet and attempt to procreate themselves later in
their lives. This is of particular concern in the embryo donation context
because the resulting children are full-blooded siblings. We could resolve
this issue by managing embryo lots together and keeping better records of
their donation path.
4. THE TAMiNG
OF THE
SOCiALLy TABOO
Before the McCaughey septuplets and “Octomom” became household
names, ART was a private endeavor funded by prospective parents and
regulated by fertility clinics.96 Now, the word is out, and society has lost
91. NAOMi CAHN, TEST TuBE FAMiLiES: WHy THE FERTiLiTy MARKET NEEDS LEGAL
REGuLATiON 23 (2009); DAViD PLOTz, THE GENiuS FACTORy: THE CuRiOuS HiSTORy OF THE
NOBEL PRizE SPERM BANK (2005).
92. Claudia Kalb, A Sperm-Biz Overhaul, NEWSWEEK, June 2, 2008, http://www.
newsweek.com/2008/05/24/a-sperm-biz-overhaul.html (debating whose needs surpass the
other: future children conceived by donor sperm, or the living adults who want anonymity).
93. Id. (reporting that three of the largest sperm banks are uniting to create the nation’s first
sperm and egg donor registry).
94. ART MODEL ACT, supra note 8, § 1002, DONOR AND COLLABORATiVE REPRODuCTiVE
REGiSTRiES.
95. See Douthat, supra note 92 (citing a study by Elizabeth Marquardt et al., My Daddy’s
Name Is Donor, a study performed by the institute for American Values who interviewed people who were conceived using sperm donation, ages 18 to 45. Douthat writes that the study
“depict[s] a population that’s at once grateful to the fertility industry and uneasy about the way
they were conceived, supportive of assisted fertility but haunted by the feeling of being a
bought-and-paid-for child.”).
96. in efforts to ensure successful practices in iVF clinics, Congress enacted the Fertility
Clinic Success Rate and Certification Act in 1992; see 42 u.S.C.S. §§ 201, 263a-1 to 263(a)(7)
(1991). But see Peter E. Malo, Deciding Custody of Frozen Embryos: Many Eggs Are Frozen,
414
Family Law Quarterly, Volume 46, Number 3, Fall 2012
its taste for sensationalized multiple births as it realizes certain costs trickle down. For instance, multiple births result in higher labor and neonatal
costs, which add to the ever-increasing burden on America’s health care
system.97
There is also a push for legislation to prohibit surrogacy because of its
potential to exploit women.98 Even female scholars who once advocated
for the procreational rights of women also find issue with what they feel
is the “exploitation” of women who become egg donors or carriers.99 The
word exploitation is becoming yet another term that is up for debate as
society decides: is reproductive donation and surrogacy a gift or exploitation?100
it is difficult to provide a remedy to public perception about the above
two issues. Educational awareness and advocacy could be stronger in both
areas. For instance, RESOLVE, the National infertility Association, is a
consumer advocacy group that provides support groups and advocacy
campaigns to educate the public about infertility as a disease.101
Additional public education provided by surrogates would be helpful to
ease fears of female exploitation.102
5. CuTTiNG
THE
ROE uMBiLiCAL CORD
Advocates in favor of embryo donation want to distance the issue from
But Who Is Chosen?, 3 DEPAuL J. HEALTH CARE L. 307, 311–12 (2000) (suggesting the Act didn’t impose adequate penalties for noncompliance, thus it might fail).
97. Lars Noah, Assisted Reproductive Technologies and the Pitfalls of Unregulated
Biomedical Innovation, 55 FLA. L. REV. 603, 626 (2003) (claiming that fertility clinics do not
absorb the high medical bills that result from multiple births) (citing Tamara L. Callahan et al.,
The Economic Impact of Multiple-Gestation Pregnancies and the Contribution of AssistedReproduction Techniques to Their Incidence, 331 NEW ENG. J. MED. 244, 247 (1994)).
98. See Megan Luther, Panel Rejects Criminal Penalties for Surrogacy, ARGuS LEADER,
Feb. 14, 2011 (where Republican Roger Hunt claims “[S]urrogacy is circumventing adoption
laws and exploiting women.”); see also Editorial: Stop Surrogacy Proposal in Its Tracks,
ARGuS LEADER, Feb. 10, 2011 (suggesting that the true purpose of Rep. Roger Hunt’s proposed
bill is to stop gay couples from using surrogates to have babies) available at http://www.
eqsd.org/ news/30-state/573-surrogacy-proposal-nuts.html).
99. See Karen H. Rothenberg, Gestational Surrogacy and the Health Care Provider: Put
Part of the “IVF Genie” Back into the Bottle, 18 LAW, MED. & HEALTH CARE 345, 104 (1991).
100. Compare Alex Kuczynski, My Baby, Her Body, N.y. TiMES, Nov. 28, 2008, http://
www.nytimes.com/2008/11/30/magazine/30Surrogate-t.html (readers viewing the photos in
this article alone would come to the conclusion that surrogacy exploits the poor at the expense
of the rich. Note the surrogate sitting on her dilapidated porch, while the intended mother stands
with her African-American nanny at her disposal), with Murphy-Raines, supra note 77 (a
would-be surrogate mother and pro-surrogate blogger who writes “the burden and beauty of
pregnancy are so under-valued in some states that women are expected to do it for free.”).
101. RESOLVE also sponsors an embryo donation (verses embryo adoption) awareness site
available at http://www.mydestinationfamily.org.
102. For example, if celebrities were surrogates themselves, instead of only using surrogates,
the public perception could change.
You Say Adoption, I Say Objection
415
abortion and have embryos classified as nonpersons. However, many articles use Roe to support the first argument against the personhood theory:
that “the unborn have never been recognized in the law as persons in the
whole.”103 To truly move out of the abortion debate, we must sever our
ties to this argument. Not only because of the obvious contradictory reasons, but also because the argument is faulty. Both historic and modern
courts have recognized the unborn as persons.104 For instance, consider
the property Rule Against Perpetuities, which treats even an unconceived
child like a human being, capable of inheriting property.105 Furthermore,
the Supreme Court itself has applied Due Process and Equal Protection
rights to the unborn.106
The status of the cells created after sperm and egg unite fuels debates
that might be far from resolution, but one thing is clear: when the abortion
debate enters into the discussion, communication breaks down and there
is a lack of will by legislators to keep up with the reality of how people
live their lives. Roe is irrevocably tied to the abortion debate. And because
it is not embryo donation’s strongest argument, we must sever ourselves
from using Roe for support.
B. How Embryo “Donation” Can Work
There exists a gaping hole when applying only the adoption model or
the property model to embryo disposition. The result creates a much higher burden on the legal system and works against the interests of all parties
involved—most importantly the best interest of the children.
1. PREDONATiON AGREEMENTS
Regardless of its classification, an embryo’s fate can be decided using
a contract. The ideal situation would be for the federal government to
enact legislation calling for uniform state statutes regarding embryo disposition. in turn, states should bind clinics by law not to proceed with
ART procedures unless a predonation agreement exists.107 These agree103. Roe v. Wade, 410 u.S. 113, 162 (1973).
104. unborn Victims of Violence Act, 18 u.S.C.A. § 1841(D)(d) (2004) (states “[T]he term
“unborn child” means a child in utero, and the term “child in utero” or “child, who is in utero”
means a member of the species homo sapiens, at any stage of development, who is carried in
the womb.”)
105. Gregory J. Roden, Unborn Children as Constitutional Persons, 25 iSSuES L. & MED.
185 (2010).
106. Id. at 255 (citing McArthur v. Scott, 113 u.S. 340, 384 (1884) stating the Rule Against
Perpetuities gives rights to children not yet conceived) and Weber v. Aetna Casualty & Surety
Co., 406 u.S. 164, 169 n.7 (1972) (stating, “We think a posthumously born illegitimate child
should be treated the same as a posthumously born legitimate child . . . .”
107. See supra section i(D)1-3. (because the case law is still unpredictable, careful legal
attention prior to ART arrangements might help in avoiding disputes.)
416
Family Law Quarterly, Volume 46, Number 3, Fall 2012
ments must address what the progenitors will do with the embryos upon
disagreement about their use, divorce, or death of one or both of the parties, and must identify contingency plans for payment of storage or disposition of embryos in case of unforeseen circumstances.
2. CLiNiC CONSENT
AND
LAWyER iNTAKE FORMS
Parties often rely on medical consent forms containing boilerplate
clauses unrelated to their specific situation. The harm in such reliance is
that the form might not represent the true intentions of the parties, and
such forms only create privity between the parties and the medical facility.108 This means the intended parents and donors might not have a valid
agreement between them. The federal government needs to strengthen its
regulation of iVF clinics. These regulations should include informing
ART patients of all options, health risks, and the full range of disposition
options. Consent forms need conspicuous type or a separate agreement so
they are not confused with an adhesion contract that a court would find
unconscionable.
ART attorneys (and sometimes fertility doctors) are drafting consents,
but it is the divorce lawyers who are dealing with them. Therefore, practicing attorneys need to be cognizant of the issues that embryo disposition
presents. For example, with one in eight women in the u.S. infertile, it is
conceivable that family law attorneys will have clients with frozen
embryos. it is less likely, however, that the clients will tell their attorney
about their infertility problems.109 Therefore, attorneys should simply add
a line to their client intake forms asking the question “Have you participated in assisted reproductive technology to achieve or attempt to achieve
a pregnancy?”110
3. DEFAuLT RuLES
Fertility specialist Dr. Preston Stacks expressed it best, saying
“Regulation is great, but you’ll always have people who rob banks.”111
Accordingly, states must create default rules for instances when, for whatever reason, predonation agreements do not exist. To prevent a progenitor
from becoming a parent, against his or her wishes, courts would likely
require the party who wishes to keep the embryos to pay for storage until
a consensus is reached. Clearly, legislation would have to place time
restrictions on such requirements. The goal, however, is that if parties
108. Sacks, supra note 19.
109. interview with Barbara Collura, Exec. Dir. of RESOLVE, Amelia island, Fla. (Apr. 8,
2011) (explaining infertility as a “silent” disease because most suffers do not discuss their problems with family, friends, and most importantly, their lawyers).
110. Sacks, supra note 19.
111. Snyder, supra note 20.
You Say Adoption, I Say Objection
417
have strong beliefs either way, they will commission a clear legal agreement outlining their wishes before they create the embryos.
V. Conclusion
ART recipients spend years and thousands of dollars fighting to
achieve the dream of having a child—something most people take for
granted. To them, the current social and legal climate is a battleground
where lines are drawn, dividing those who will do whatever it takes to create a child of their own from others whose values and beliefs get in the
way of that dream. ART offers a solution for creating families for those
who only decades ago might have otherwise remained childless. But the
research is misunderstood, and the political platforms have hindered
ART’s progress and reinforced its social stigma. Once we remedy the
processes and circumvent the obstacles creating the negative public perception of ART, courts will be free to properly classify embryos according to more favorable public policy. in the meantime, by filling the gaps
in the existing legal structure with required agreements and consent
forms—leaving no doubt as to parties intentions—progenitors, donors,
and surrogates alike can safely navigate the legal system. The end result
is that the fate of an embryo is no longer subject to a war of terminology
and legal classification. instead, with the help of a little medical magic, an
embryo once again becomes the hope for a family.
And for hundreds of thousands of years, without anyone knowing quite how
or why, [human reproduction] has worked—well enough to perpetuate the
species, populate the planet, and bring the joy and responsibility of children
to countless generations of parents.
But what if it doesn’t work? What if egg meets sperm and nothing happens?112
112. The quote that begins and ends this article (Elmer-DeWitt, supra note 1) is from a Time
article written in 1991. Replace each instance of the word “iVF” with the word “embryo” to find
a similar legal and social landscape that exists today for embryo disposition. Twenty years ago,
iVF hopefuls struggled with the challenges and uncertainties that face embryo progenitors and
donees today. Hopefully it takes fewer than twenty years to create a legal structure and social
acceptance that allows everyone to access the miracle of ART.