Conundrums in Assisted Reproduction
Whittier Law Review, Vol. 21, pp. 451-460, 1999
Posted: 11 Aug 2000
Increasing numbers of couples are pursuing in vitro fertilization, leading to an ever-growing supply of cryopreserved embryos. When these couples divorce, the courts are faced with a new type of property dispute: who gets the frozen embryos.
While courts could decide these disputes using a best-interests analysis, they have chosen not to. Instead, courts adopt one of two models. The first, a privacy rights model, weighs the right to procreate versus the right to avoid procreation. Courts adopting this model have held that the right to avoid procreation should ordinarily trump, unless the party seeking to procreate has no other reasonable possibility of achieving parenthood. In the second model, the courts seek to enforce the couple's intent, as expressed in the dispositional agreement they have signed.
This essay argues that the courts have employed both the privacy rights and contractual models in result-oriented ways. Courts uniformly favor the party seeking to avoid procreation. To avoid facilitating the creation of post-divorce, single-parent families, the courts have embraced unsupported constitutional presumptions and skewed contractual readings. This essay concludes that the conundrum that remains in frozen embryo disputes is: will courts ultimately enforce dispositional agreements in good faith or will they continue toward results- oriented jurisprudence - a jurisprudence that avoids the creation of single-parent families and favors the right to avoid parentage over the right to secure it?
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