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.
Date posted: October 19, 2002
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