Through the ingenuity of humankind, life can now be created in a petri dish and with it comes a genesis of the legal rights to that life. The 1978 birth of Louise Brown, the first child born using in vitro fertilization (IVF), opened up a new world of legal wrangling which culminated in the Tennessee Supreme Court decision of Davis v. Davis in 1992. The issue of frozen preembryos in divorce cases raises constitutional, property and contract issues, which courts will increasingly have to address. The constitutional issue pits the one party's right to procreate against the other party's right to not procreate. The property issue concerns "ownership" of the frozen preembryos between the parties. The contract issue involves agreements sometimes made upon entry into the in vitro fertilization program, which can determine the disposition of the preembryos upon termination of the IVF program. Part I of this article will introduce the reader to the process of in vitro fertilization. Part II will discuss relevant case law to date involving the disposition of frozen preembryos, including Davis. Part III will discuss the three prevalent views concerning the status of preembryos. Part IV of this article will analyze these views, how they may be adopted by courts in the future and how they may be applied to new cases, such as one recent case in Illinois. Finally, Part V will review the relevant parts of the Model Assisted Reproductive Technologies Act as proposed by the Committee on the Laws of Assisted Reproductive Technologies and Genetics of the American Bar Association and advocate its adoption. The question of who may obtain frozen preembryos in divorce situations is not a pleasant one, but using the principles outlined in this article, equitable solutions may be found.
College of Law
Northern Illinois University Law Review
Arado, Thomas D.
"Frozen Embryos and Divorce: Technological Marvel Meets the Human Condition,"
Northern Illinois University Law Review: Vol. 21:
1, Article 2.
Available at: https://huskiecommons.lib.niu.edu/niulr/vol21/iss1/2