Strasser — Volume 57, Issue 4

Modern delayed childbearing and assisted reproductive technologies including in vitro fertilization (IVF) create novel divorce property disputes over frozen embryos. Couples increasingly delay family formation as fertility declines with age, making IVF use essential for many hoping to have biological children. The high divorce rate in the United States combined with increasing IVF use predictably generates disputes over disposition of cryopreserved embryos when marriages dissolve. State courts addressing frozen embryo disposition have suggested varied approaches, ranging from enforcing initial prior agreements about embryo use to requiring contemporaneous consent before implantation, balancing competing parties' interests and family structure implications. Courts have disagreed about embryo legal status—whether embryos constitute persons or property—with significant consequences for disposition outcomes. The Davis and Kass cases illustrate critical legal problems: when couples fail to make agreements regarding embryo disposition or make agreements without considering future difficulties. Tennessee and New York courts have clarified that frozen embryos cannot be classified as persons, yet initial IVF agreements remain enforceable under contract principles. While judicial enforcement of initial IVF agreements has limitations compared to competing approaches, these enforcement challenges pale beside alternative theories' difficulties. Strasser contends that cases analyzing embryo disposition tend not to provide adequate weight to family law issues generally or to reasonably examine practical case implications.

Topics: Family Law · Property · Contracts

Keywords: frozen embryos · IVF · divorce · embryo disposition · contract enforcement · reproductive rights · assisted reproduction