Embryonic Option-hood

Abstract

A frozen embryo does not merely represent a potential for human life; it represents a deferred decision to trigger this potential. Parties value this decision deferral because it allows them to retain the option to attempt conception after any uncertainty about future events or desires has resolved. Failing to recognize this “option value” of embryos has resulted in confusion over the best approach to allocating ownership of embryos and calculating damages for reproductive harms. This Article provides a novel paradigm showing that embryos should be treated as neither persons nor mere property; instead, a significant portion of their value is in their ability to preserve and defer decisions over implantation. When such embryonic option-hood is overlooked, society risks improperly allocating disposition rights and undercompensating patients who were deprived of this option. Given this insight, this Article makes two significant contributions. First, this Article proposes a modified approach to embryo disposition that validates—rather than undermines—the option value of embryos. In the absence of a valid contract, most courts balance party interests at the time of conflict. Because this approach is not focused on party expectations at the time of embryo creation, reliance on the traditional balancing test can essentially destroy the option value of embryos. This Article adds an intermediate step before resorting to balancing which requires the court to make a fact-intensive determination into whether there was an agreed-upon disposition at the time of embryo creation. In the absence of evidence of original intent, the Article proposes a modified version of the traditional balancing test courts have used. Second, acknowledging the option value of embryos sheds light on how to calculate damages in different contexts. This Article establishes a methodology for determining both the standard of care/regulatory standards necessary to protect embryos as well as damages for compensating patients for negligence resulting in embryo loss and for intentional interference with embryos. The Article concludes by cautioning that state interference newly allowed by Dobbs can eviscerate the option value of embryos, with upstream effects for embryo creation and fertility care access. 

Keywords: Fertility Care, Assisted Reproductive Technology, Risk, Embryos, Injury Valuation, Regulation, Torts, Health Law

JEL Classification: K13, K12, K32, K41, I18, I12