50 Pages Posted: 21 May 2013
Date Written: May 20, 2013
Since 1992, when the Tennessee Supreme Court first confronted the issue in Davis v. Davis, courts have applied three different methods of analysis in disposing of frozen embryos upon divorce: a contractual approach, a contemporaneous mutual consent approach, and a balancing approach. Many view these approaches as conflicted. But in fact, with the exception of the right of a progenitor to change his or her mind as to disposition, the approaches taken by courts are quite consistent and offer a very workable continuum of analysis when parties have not unambiguously expressed their intent for disposition upon divorce. This continuum accommodates autonomous decision-making by the progenitors, balances individual interests, and respects the policies of the state.
This article proposes that state legislatures should mandate that parties participating in assisted reproductive technologies expressly provide for disposition upon the contingency of divorce. Such a mandate will provide predictability for the progenitors and the fertility clinics, and will promote decision-making autonomy to parties who agree to participate in the assisted reproductive process.
With respect to the right of a progenitor to change his or her mind as to disposition, the parameters of the framework set out in Davis must be more narrowly defined. Specifically, courts should adhere to the strict contractual model in cases in which the parties have expressly and unambiguously stated their intent for disposition upon divorce. In cases in which couples have not reached such agreement, the court should allow a party to determine his or her intent upon the contingency of divorce and provide for contemporaneous mutual consent to resolve disposition. Only upon the absence of an original agreement, or conflict between the parties as a result of the contingency of a divorce that was not contemplated in the original agreement, should the court balance the parties’ interests to determine disposition.
Suggested Citation: Suggested Citation
Flannery, Michael, 'Rethinking' Embryo Disposition Upon Divorce (May 20, 2013). Journal of Contemporary Health Law and Policy, Vol. 29, No. 2, p. 233, 2013. Available at SSRN: https://ssrn.com/abstract=2267494