Precommitment Strategies for Disposition of Frozen Embryos

Abstract:     
The question of whether to enforce agreements to implant frozen embryos after divorce has become a major legal and policy concern for the 300 clinics and thousands of couples who use infertility services every year. Although courts in New York and Tennessee support enforcement, recent decisions by appellate courts in Massachusetts and New Jersey have refused to enforce such agreements on the ground that courts should not force people to reproduce.

This article analyzes conflicts over enforcement of agreements for disposition of frozen embryos in terms of the precommitment strategies which persons use to plan their lives, and the special problems for constitutional rights which precommitments pose. It shows that refusal to enforce contracts for frozen embryos impairs reproductive freedom, is unfair to the parties who relied on them in undertaking invasive infertility treatments, and is possibly unconstitutional. It also addresses the extent to which precommitments for rearing rights and duties in resulting children should be enforced, if agreements to implant embryos are recognized. In addressing these issues, it explores the extent to which constitutional doctrines of waiver implicate issues of precommitment.

Number of Pages in PDF File: 59

Accepted Paper Series