To Be or Not to Be (a Parent)? – Not Precisely the Question; The Frozen Embryo Dispute

Yehezkel Margalit

Netanya Academic College; New York University School of Law

January 20, 2011

18 Cardozo Journal of Law & Gender, 355 (2012)

Modern medicine offers us a variety of fertility treatments. One of the results is that in the United States alone there are a more than 400,000 frozen embryos and another 10,000 frozen embryos are frozen each year. Since the rate of divorce in the United States increases exponentially, one can easily imagine how many frozen embryos may become the subject of litigation. Indeed a lot of attention is devoted to this sort of dispute by the media, the law and by people considering the ethical aspects. This is because this kind of dispute forces us to reassess many complex matters starting with the appropriate balance between the legal right to become a parent and the legal right not to be forced to become a parent. In this research we will try to present for reassessment the legal dispute as dichotomy and binary as if we have to choose between two options, either full legal parentage or no legal parentage. We will prove that the establishment of legal parentage is primarily by agreement due to the intention, wish and agreement which led to the birth of a child. In our opinion, the extent of parental status to be given to the legal parent depends upon the extent of the responsibility, which he is willing to undertake. If he accepts all the parental duties, his status will be that of a full parenthood, but if he does not want to undertake all the parental duties, he will not receive any parental right, but simply the status of non-parenthood. This approach used in the case of adoption was also applied in legal practice in many states of the United States and in the world, whereby the donor of gamete, semen and ova, or even frozen embryo receives the status of non-parenthood. In this research we will endeavor to examine the value and efficiency of offering an additional legal option which may be a possible compromise in the case of the bitter quarrels with regard to frozen embryos - granting the non-parenthood status to the spouse who objects to the continued fertility treatments and to becoming a parent against his will.

Number of Pages in PDF File: 35

Keywords: Family Law, Contract Law, Parenthood, Father, Mother, Frozen Embryo, Fertility Treatments, Semen, Ova, Assisted Reproduction, Parentage, Parent Child, IVF, In Vitro Fertilization, Alternative Families, Genetic Parent, Legal Embryo Custodian, Intended Parent, Cryopreserved Embryo

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Date posted: January 23, 2011 ; Last revised: April 19, 2012

Suggested Citation

Margalit, Yehezkel, To Be or Not to Be (a Parent)? – Not Precisely the Question; The Frozen Embryo Dispute (January 20, 2011). 18 Cardozo Journal of Law & Gender, 355 (2012). Available at SSRN: https://ssrn.com/abstract=1744166 or http://dx.doi.org/10.2139/ssrn.1744166

Contact Information

Yehezkel Margalit (Contact Author)
Netanya Academic College ( email )
New York University School of Law ( email )

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