Thanks to Andrea B. Carroll, C.E. Laborde, Jr. Professor of Law, Paul M. Hebert Law Center, LSU, writing on the Family Law Profs Blog for a heads up on Professor Mark Strasser's recent article about frozen embryos. Strasser's article "You Take the Embryos But I Get the House (and the Business): Recent Trends in Awards Involving Embryos Upon Divorce," 57 Buffalo L. Rev. 1159 (2009). Available at SSRN: http://ssrn.com/abstract=1478032
An excerpt:
More and
more couples are delaying starting a family. Because fertility declines with
age, delaying childbirth increases the likelihood that couples will have to make
use of assisted reproductive technologies such as in vitro fertilization (“IVF')
to fulfill their hopes of having children biologically related to at least one
of them. As might be expected in a country with a relatively high divorce rate,
the increased use of IVF has led and will continue to lead to more and more
couples having to decide what to do with remaining frozen embryos upon
dissolution of their marriages.
While some divorcing couples have little or no difficulty in deciding who should control the disposition of their cryogenically preserved embryos, others must rely on the courts to determine who will have final say over how or whether those embryos will be used. State courts have suggested a variety of ways to resolve such conflicts, ranging from enforcement of prior agreements to balancing the needs and desires of the parties to requiring contemporaneous consent before implantation can take place. Regrettably, because the courts analyzing these issues tend not to give adequate weight to how related family law issues are resolved and because the courts have not adequately considered some of the practical implications of their positions, both the reasoning and the results in these cases are all too often anomalous.
Part I of this article discusses Davis v. Davis and Kass v. Kass, in which the highest courts of Tennessee and New York respectively stated that initial agreements regarding the disposition of frozen embryos are enforceable. These cases illustrate the possible heartbreak that can be caused either when couples fail to make agreements regarding the disposition of their frozen embryos or when they make agreements without carefully considering the possible difficulties that might have to be confronted in the future. Part II discusses some of the subsequent decisions in which state courts have made clear that frozen embryos cannot be used if one of the progenitors objects, initial agreement to the contrary notwithstanding. These decisions not only reflect a preference against implantation but also create the opportunity to game the system at one of the worst possible times. Part III discusses two recent intermediate appellate decisions in which the courts seem to revert to the earlier Davis-Kass model whereby initial agreements are enforceable. The Article concludes that while the judicial enforcement of initial IVF agreements has its own difficulties, these pale in comparison to the difficulties posed by some of the competing approaches.
As we've seen in the Octo-Mom case, embryo implantation can be fairly controversial without responsible controls.
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