"Wait a Minute, I've Changed My Mind" -- Finding the Right Time to Determine the Disposition of Frozen Embryos

Gwen Mayes, JD, MMSc


July 25, 2005

When the Department of Health and Human Services issued an announcement for financial assistance to support the development of public awareness campaigns for the "adoption" of extra frozen embryos created through artificial insemination,[1] few at the Department could have foreseen that the chief spokesperson for the initiative would have been their Commander-in-Chief. But when recent debates ensued over the use of frozen embryos for stem cell research, President George W. Bush appeared nationwide surrounded by children who had their start in life as products of advance reproductive technologies.

The enhanced ability to freeze sperm, embryos, and now ova has created a boon in in vitro fertilization (IVF) programs. Standard IVF entails the surgical removal of eggs from a woman's ovaries, collection of sperm, extracorporeal fertilization and then placement of the fertilized egg within a woman's uterus. Because the invasive surgical techniques used to remove the eggs pose hardships for most women and because the process is quite costly, many more eggs are removed than are realistically intended for use in order to minimize the need to repeat the retrieval.

A nationwide survey conducted in 2003 by the American Society of Reproductive Medicine and the Rand Corporation found that 400,000 unused frozen embryos were currently being stored in fertility clinics in the United States.[2]

These "additional" frozen embryos can pose unforeseen problems for the couple as their wishes and desires to parent change over time. Once a pregnancy has been successful, most couples choose to either allow the frozen embryos to be destroyed, donate them to research, or donate them to another infertile couple. Often they decide to keep them in storage indefinitely. But when couples face separation or divorce, the disposition of frozen embryos can embroil them in difficult legal, ethical, moral, and religious questions. Even if they agreed on what to do at the time IVF was begun, their views and opinions on parenting can change over time, just like with any other couple.

Over the past several years, some important cases have shed light on the legal parameters and core ethical issues facing couples who disagree over the disposition of frozen embryos. The seminal case, Davis v. Davis,[3] involved a Tennessee couple who attempted for several years to have children through IVF. The last attempt produced 7 extra embryos, which were placed in cryopreservation for possible use at a later time. When the couple signed up for IVF, they did not execute a written agreement specifying what disposition should be made of any unused embryos that might result from the cryopreservation process. Thus, when the couple filed for divorce and the wife wanted to retain the embryos, the husband filed suit seeking to enjoin the clinic from releasing them. She sought "custody" of the embryos; he wanted them destroyed.

The Supreme Court of Tennessee upheld the lower court's ruling that the pre-embryos in this case should not be considered "persons" or "property" in the contemplation of the law, nor where they afforded protection as "persons" under the federal law as laid forth in Roe v. Wade. However, the Supreme Court refused to let stand the lower court's ruling that the couple held joint custody of the pre-embryos, noting that the only outcome allowable was to keep the pre-embryos in cryopreservation pending the couple's possible future meeting of the minds. Instead, the higher Court shifted its analysis to the issue of whether the couple intended to have children in the future -- not whether they agreed on the disposition of the pre-embryos -- and ruled that the answer turned on the parties' exercise of their constitutional right to privacy.

The legacy of Davis v. Davis is that courts will not force someone to parent against his or her will. "What's totally interesting about the Davis case is regardless of the facts, courts since have all said that parenting is such a burden, such an exercise of one's decisional capacity, that we're not going to force someone to accept that burden against their will," says Ami S. Jaeger, JD, MA, founder of BioLaw Group, LLC, a firm devoted to the intersection of reproductive medicine, genetics and the law (personal communication with Ami S. Jaeger, JD, MA of BioLaw Group, LLC on June 29, 2005). The court in the Davis v. Davis case held that the husband was entitled to custody of the pre-embryos and that his interest in not being a parent outweighed his former wife's interest in obtaining the embryos for future use.

One important legacy of Davis v. Davis is the incorporation of written agreements and consent processes from the beginning of IVF treatments that spell out what will happen should the couple, at a later point, disagree on the disposition of unused embryos. In Kass v. Kass,[4] a wife brought a matrimonial action against her husband seeking custody of 5 cryopreserved pre-embryos produced during the couple's participation in IVF. During the couple's numerous attempts to procreate, they entered into an agreement stating that if they no longer wished to have children together or were unable to do so, the pre-embryos would be donated to research. "The Kass case is interesting because here the couple had informed consent-to-treatment documents and the court said they were important but that they were not sufficient for the disposition of embryos," says Jaeger. "As a result, the court went through this major opinion about why a directive for disposition is different from an informed consent for treatment. But it's still important to note the distinction today, because 99% of what I see are physicians who are still using informed consent-to-treatment documents as dispositional statements. The two should be separate."

According to Jaeger, California has gone so far as to incorporate a separate disposition "form" into the state statute as an example of the type of discussion that needs to take place and what is legally required to memorialize the couple's intent. "The state legislature is trying to build a bridge between what happens when you first go to the doctor in hopes of getting pregnant, and what happens down the road when your life may have very well changed." Jaeger stresses that California's approach is very much like the approach that has been used for artificial insemination for the past 2 decades. "I don't think it's totally off the mark in terms of policy, because it is following what we have used for generations with artificial insemination by donor statutes with legal consent to the insemination," she adds.

Although one of the more helpful legacies of Davis v. Davis was the introduction of consent forms -- and a movement to introduce additional dispositional forms -- courts have also had to address the validity of a written agreement when one or both of the parties changes their mind at a later date. Public policy favors enforcement of current family values that govern familial relationships as evidenced by court's refusal to enforce contracts never to divorce, marry, or terminate parental rights before birth.[5]

In Re: Marriage of Witten III,[6] the wife appealed a dissolution decree of the district court enjoining the parties from unilaterally using their frozen embryos based on the fact that she had changed her mind since the couple had initiated IVF. Her main argument was that the couple's written agreement violated public policy. The informed consent form the couple signed included an "embryo storage agreement," which limited the transfer, release, and disposition of the remaining embryos to signed mutual approval of both depositors. The only exception to the joint-approval requirement that governed the disposition of the embryos was upon the death of one or both of the depositors. Divorce and a differing of opinion, including one not contemplated at the time of IVF consent, was not contemplated.

The Iowa Supreme Court in Re: Marriage of Witten III held that it would violate public policy to enforce a prior agreement regarding the use and disposition of embryos when a party had changed its mind. In reaching its conclusion, the court stressed the importance of a contractual approach; however, it also recognized legitimate criticism to enforcement of a written agreement that may very well be inconsistent with later views. On matters of such fundamental personal importance as parenting, the court held that "individuals are entitled to make decisions consistent with their contemporaneous wishes, values, and beliefs."[7] Additionally, the court felt that to make binding decisions about "the future use of their frozen embryos ignores the difficulty of predicting one's future response to life-altering events such as parenthood."[7] Although the court held that enforcement was subject to one's change in opinion, it would not proceed with one party's wishes over the other. Absent mutual, contemporaneous consent, the court held the written agreement to be the default decision.

"When a couple comes in for IVF, the last thing they want to think about is divorce or separation. They want to cry and talk about their infertility," says Jaeger. "It's important to recognize where in the process the couple is willing to talk about the disposition of unused embryos. Doctors need to turn away from using a standardized consent form that's been around for the past 10 years. These cases have taught us that talking about the disposition of frozen embryos doesn't involve a 'one size fits all' approach."

Since Davis v. Davis, other equally emotional and convoluted cases have been brought to court by families faced with differing views on the disposition of unused embryos. Some involve donor eggs and sperm, considerations of future fertility possibilities, and the usefulness of the "best-interest" balancing courts often use in determining parental rights. Davis v. Davis remains good law -- courts will not force parenting against someone's will. Subsequent case law supports this view and seems to be solidifying the contemporaneous mutual consent approach to determining whether to enforce written agreements when couples disagree about the disposition of frozen embryos.

"Consent is a process, not a point in time," says Jaeger. "You can change your mind, but you'll still need mutual consent."


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