The Law and Human Reproduction

The successful development and use of in vitro fertilization (IVF) as a solution to a couple's infertility problem has opened up a new and complex area of civil law. To begin, here is a review of the process and terminology:

• Hormonal stimulation of the ovaries to produce multiple eggs

• Removal of the eggs to a glass dish, where sperm are introduced

• Upon fertilization in this environment, the egg divides and becomes a four to eight cell "pre-zygote."

• Several pre-zygotes are transferred to the woman's uterus via catheter

• If successful, a pre-zygote will attach to the uterine wall and become a fetus.

• Alternatively, pre-zygotes may be preserved indefinitely at extremely cold temperature in liquid nitrogen.

• "Pre-embryo" is a medically accurate term for a zygote that has not been implanted in a uterus. A true embryo develops only after successful implantation.

Upon entry into an IVF program, a couple will generally execute a number of consent forms regarding the ultimate disposition of the pre-embryos and embryos formed as a result of the IVF process. Conflicts arise when the contractual intent is thereafter found to be in conflict with state law, contract law or constitutional rights due to changed life circumstances.

The delicate matters facing the courts go beyond mere property and contractual rights to include the rights of potential human beings, as well as the rights of the progenitors. There is no federal law with respect to disputes over embryo ownership. Only three states have enacted statutes regarding the disposition of frozen embryos.

Several courts have found consent agreements in this environment unenforceable because contractual agreements to enter into familial relationships should not be enforced against people who reconsider the decision. On the other hand, a disputed agreement to donate unused pre-zygotes to a fertilization clinic instead of being used for implantation in the donor was upheld. In a case where there was no such agreement, a court held that the father's wish to avoid parenthood of any sort prevailed over the wife's desire to donate the pre-embryos to a childless couple.

The most challenging controversy arises when frozen embryos become the focus of parental dispute. If divorce precludes conception by the donors, the courts must decide which party's interests prevail: for example, if one party still wishes to become a parent and the other does not. Some courts have reasoned that the embryo constitutes a person or "unborn child," and that therefore the rules governing "the best interests of the child" prevail. Most of these decisions have been overturned. Thus far, courts have been reluctant to treat embryos as matrimonial assets, or personal property.

If the embryos are neither persons nor property, the issue turns to a constitutional test because it is framed as the question of whether one party's desire to procreate is more or less meaningful than the other party's desire not to procreate. Prior contractual agreements on disposition of these embryos preclude the necessity of weighing the rights of parenthood. If no such documentation is in place, the issue will turn on the court's legal classification of the embryos: a collision of science and law that is unprecedented in our history.