Frozen Pre-Embryos and the Right to Change Ones Mind
Northwestern University - School of Law
Duke Journal of Comparative & International Law, Vol. 12, No. 75, 2002
Couples who use in vitro fertilization (IVF) in order to conceive a child may produce more fertilized eggs than can be implanted safely for gestation. Often the couple leaves the fertilized eggs, or pre-embryos, with the fertility clinic to be frozen and stored. Many, but not all clinics, require the couple to sign a pre-treatment agreement in which the couple must choose the means of disposal of the pre-embryos if the couple does not intend to attempt implantation in the future. One of those contingencies is if the couple divorces. In a handful of cases litigated in the United States and one case in Israel, one of the divorcing couple wanted to obtain custody of the pre-embryos in order to attempt implantation; the other wanted the pre-embryos destroyed. In two of the cases the couple had not signed a prior agreement. In all except the Israeli case, the courts awarded the pre-embryos to the party who would destroy them, but the decisions rest on different grounds. Those grounds have included freedom of contract, the competing rights to be a parent and not to be a parent, and the importance of biological parenthood for one who has no other opportunity to produce a biological child.
The article compares United States case law with that of Israel and includes a comparison with United Kingdom law. In the U.K., comprehensive legislation requires that the couple, at the time of the IVF treatments, agree to future disposition of their frozen pre-embryos and that both consent to any changes in that agreement. The article traces, however, how the recently enacted Human Rights Act may change and complicate U.K. law.
Accepted Paper Series
Date posted: October 19, 2002
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