American Journal of Law & Medicine

Assisted reproductive technologies and the pregnancy process: developing an equality model to protect reproductive liberties.


The world of assisted reproductive technologies (ART) has forced our society to confront scenarios that were unimaginable a mere quarter century ago. The birth of Louise Brown in 1978, the first child conceived through in vitro fertilization (IVF), introduced to the world the notion of asexual reproduction.(1) The bitter battle over the parental status of Baby M., a baby born by a surrogate mother in the early 1980s, engendered a public debate over the interaction between contract law, family law and reproductive liberties that still rages today.(2) In 1992, the highly publicized divorce of Junior and Mary Sue Davis(3) focused national attention on the issue of proper disposition of frozen embryos.(4) This case highlighted the fact that conception and pregnancy could be separated by a significant amount of time as a result of cryopreservation.(5) While each of these events marked a step forward in the march toward total technological mastery of human reproduction, they also suggest that future struggles involving ART will grow increasingly fierce and complicated as our fund of knowledge increased. This Article suggests that current disputes over the disposition of frozen embryos are emblematic of that struggle.

Recent case law concerning the disposition of frozen embryos in divorce proceedings, presents a unique opportunity to evaluate whether our judicial system is equipped to dispense justice in a way that accommodates emerging advances in ART, without neglecting long-standing principles of reproductive freedom. In Kass v. Kass,(6) the New York Court of Appeals held that preconception agreements between gamete donors regarding the disposition of embryos will be presumed valid and should be enforced in the event of later disagreement between the parties.(7) The court evaluated several documents that were signed by Maureen and Steven Kass at the request of their IVF provider, and concluded that these writings indicated the parties' mutual intention to donate any disputed embryos to the IVF program for research purposes.(8) Though Maureen disputed this intent and beseeched the court to allow her to implant the embryos, the court stood firmly in favor of contract adherence.(9)

In a case of gender role reversal, the New Jersey Superior Court recently ruled in a case in which a divorcing husband sought control of the couple's frozen embryos.(10) In J.B. v. M.B., Judge Lee Gaskin granted summary judgment for the wife, who requested that the embryos be discarded.(11) The husband objected to destroying the embryos on religious grounds and asked the court to allow him to either use them himself, presumably with a future partner, or to donate them to another couple.(12) Because no clear contract governed the disposition of the disputed embryos in J.B.,(13) the court relied on earlier precedent to resolve the dispute.(14) In The court reasoned that because the husband had a reasonable probability of achieving parenthood in some other way, the wife, who was seeking to avoid procreation, had a greater interest and should prevail.(15)

At first blush, the Kass and J.B. decisions seem to be quite different. The Kass court relied on the existing contract,(16) while the J.B. court had no such document on which to rely.(17) The plaintiff husband in J.B. sought to control his embryos to prevent their destruction,(18) while the plaintiff wife in Kass fought to control her embryos to preserve them and enhance her reproductive opportunities.(19) Despite these disparities, both courts eschewed long-standing principles of reproductive liberty(20) and established a systematic approach to resolving embryo disputes that favors procreative avoidance in virtually every scenario. Although one could reasonably argue that two decisions hardly constitute a trend, they are among a handful of similarly decided cases,(21) with no case yet decided to the contrary. Moreover, legislatures in several states have enacted, or are considering, legislation that would require couples undergoing ART to sign preconception agreements directing the disposition of disputed embryos.(22) This Article argues that such agreements threaten protected constitutional rights by denying women the right to control their early embryos. Therefore, it is essential to evaluate the current default method of favoring procreation avoidance over embryo implantation. Query whether this approach, despite its administrative attractiveness, is truly a fair and constitutional approach to the embryo disposition dilemma.

In order to argue that a particular approach is unconstitutional, one must prove that constitutional rights are implicated in the given scenario.(23) The Kass court explicitly declared that: "disposition of these pre-zygotes does not implicate a woman's right of privacy or bodily integrity in the area of reproductive choice.(24) Part II of this Article takes issue with the Kass court's position and argues that reproductive liberties are at stake from the moment a woman's egg and a man's sperm are fused in the petri dish. This argument rests in part on the notion that pregnancy, as a legal matter, is a process that does not necessarily begin with implantation in the uterine wall. Rather, in the context of ART, pregnancy commences with an action done with the intent to produce a child. A woman using ART should have the same right to control the fate of her unimplanted embryo as she would have to control her early fetus in a traditional pregnancy. Anything less would deny women undergoing ART equal protection of precious reproductive liberties.

Part III attempts to synthesize the aspirational qualities of reproductive freedom with the practicality of enforcing-the written contractual obligations that dominate the world of ART. If reproductive autonomy is to play a meaningful role in the lives of infertile women, it must be synonymous with the liberties accorded their naturally conceiving counterparts. Liberty is not absolute.(25) Reproductive liberty often gives way to state interests, as seen most visibly in the abortion arena.(26) Part III sets forth a scheme that accords infertile women the right to control their preimplanted embryos and sets reasonable limitations on that right. This framework attempts to achieve the equal treatment of fertile and infertile women, as they exercise their procreational rights.

Finally, Part IV explores the current use of contract law to resolve disputes over frozen embryos. The Kass court unequivocally pronounced that preconception agreements between gamete donors are presumptively enforceable.(27) This strong application of contract principles will undoubtedly encourage ART clinics to draft clear and unambiguous consent forms, and will alert couples undergoing infertility therapy that they will be held to their preconception expressions of intent. While recognizing that any progress toward greater informed consent in the fertility area is laudable, Part IV questions whether contract principles that evolved largely to accommodate commercial transactions are appropriately applied to reproductive decision making. Because contract principles have often failed to withstand public policy analyses in related fields, such as surrogate parenting contracts, adoption and abortion,(28) it is questionable whether they have a legitimate role in the disposition of fused gametic material.



The introduction of IVF and embryo transfer in 1978 was considered to be much more than a medical breakthrough.(29) For the first time, people began to understand that conception and pregnancy were not inherently linked.(30) This concept was further clarified when embryo cryopreservation techniques were introduced several years later.(31) From a rights perspective, freezing embryos meant suspending reproductive liberties until the embryo had safely implanted itself in a woman's womb. That is, to the extent a woman had a right in the form of reproductive freedom to use technologies such as IVF, any further reproductive rights surrounding IVF only came into being once the woman became pregnant. In a sense, pregnancy was and remains the gatekeeper for reproductive rights.(32)

The concept of pregnancy as a gatekeeper for reproductive rights was first articulated by a high court in a case that remains the seminal framework for resolving disputes over frozen embryos. In Davis v. Davis,(33) Mary Sue and Junior Davis's efforts to conceive resulted in five tubal pregnancies, a failed attempt at adoption and seven attempts at IVF.(34) In the end, they were left with a failed marriage and seven frozen embryos.(35) The couple fought for control of their frozen gametic material in their divorce action.(36) Mary Sue Davis originally wanted to implant the embryos in her uterus, but after remarriage, she favored donation to a childless couple.(37) Junior Davis opposed such a donation and asked the court to order that the embryos be discarded.(38) After determinations by the trial and appellate courts, the case came before the Tennessee Supreme Court, which established the now-revered analysis for determining disposition of contested frozen embryos.(39)

The court set forth a three-part test to be applied in cases where couples disagree over the disposition of their cryopreserved embryos.(40) First, courts should look to the preferences of the progenitors.(41) This prong may often be unrealistic, because it assumes a shared preference between the progenitors, and, in most cases, the very reason a court would decide such a matter is a lack of consensus between the gamete donors. This "preference" prong could prove useful if, for example, one of the progenitors were to die and left specific instructions on embryo disposition that the surviving spouse, parent or other family member of the decedent later disputed.(42) Under such circumstances, a court could rely on the donor's preferences to direct the use or nonuse of gametic material, rather than relying on a substituted judgment(43) or a best interest standard.(44)

The second prong of the Davis test provides that if the wishes of the progenitors are unascertained or in dispute, courts should enforce prior agreements concerning disposition.(45) Although the Davises did not have such a prior agreement, the court felt it was essential to set out the principle of presumed validity of preconception agreements.(46) The practice of automatically enforcing preconception agreements has much appeal, as seen in later cases, because it is easy to administer.(47) This Article addresses the question of whether a policy of presuming the validity and enforceability of embryo agreements, though administratively convenient, is truly the best way to resolve disputes.

The final prong of Davis looks to "the relative interests of the parties in using or not using the preembryos," absent a prior agreement.(48) According to Davis, courts should weigh those interests so that a party wishing to avoid procreation should prevail, as long as the other party has a "reasonable possibility of achieving parenthood by means other than use of the preembryos in question."(49) If no other reasonable alternative exists, the argument in favor of implantation should be considered, unless the party seeking control merely wishes to donate the embryos to another couple.(50) When one party seeks to donate the embryos, the party wishing to avoid procreation should prevail.(51) The Davis court balanced what is considered to be two aspects of procreational autonomy: the right to procreate, and the right to avoid procreation.(52) The court essentially dismissed Mary Sue Davis's right to procreate, stating that her desire to donate or implant the embryos did not implicate a woman's right to control her reproductive autonomy.(53) Without a physical pregnancy, a woman's right to procreate will necessarily fall short of a man's right to avoid procreation. Thus, the concept of pregnancy as a gatekeeper of reproductive liberties emerges.

To date, the only other reported high court decision ruling on the issue of embryo disposition also favored the notion of pregnancy as a gatekeeper for reproductive rights.(54) In Kass v. Kass, the New York Court of Appeals confronted a divorcing couple who had tried to conceive a child through IVF over a period of three years.(55) During those three years, Maureen Kass, the wife, underwent five cycles of hormone treatment and invasive egg retrievals, and nine implantation procedures in which embryos were placed in her uterus via a needle inserted through her cervix.(56) She was impregnated twice; the first pregnancy ended in a miscarriage and the second in an ectopic pregnancy requiring surgical removal of her fallopian tube.(57) After this series of disappointments and traumas, the couple agreed to dissolve their marriage, but disagreed over the disposition of five embryos cryopreserved for later use.(58) Although purportedly sympathetic to the physical and emotional strain endured by the Kasses, particularly Maureen Kass, the court succinctly dismissed the notion that the disposition of the embryos raised reproductive liberty or privacy concerns. …

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