Whose embryo is it anyway? Courts wrestle with issues of high-tech reproduction.

Advancements in reproductive technology have enabled thousands of infertile couples to achieve their dream of having children biologically. At the same time, these developments have presented the judiciary with new and challenging issues.

Some of the toughest cases have involved cryopreservation--a process whereby a donor's gametes or the embryos created from them are frozen and stored at very low temperatures for future use. This has resulted in a unique kind of custody dispute, as courts must now determine ownership rights when divorcing parties disagree about the disposition of their frozen embryos.

Courts have been grappling with the complex legal questions raised in these cases for at least a decade: Who owns frozen embryos? Should agreements about their disposition be enforced? And can a person who used in vitro fertilization to create them be forced to become a parent against his or her will?

The New Jersey Supreme Court tried to provide some answers earlier this year in J.B. v. M.B. The case involved a couple who had signed a consent form that permitted them to obtain a court order directing disposition of their frozen embryos if they divorced. When the marriage ended, they sought a determination from the court.

The woman did not want the embryos implanted, and the man did not want them destroyed. The court ruled in favor of the woman, noting that under New Jersey law there is a policy against enforcing contracts to enter into or terminate family relationships. (2001 WL 909294 (N.J. Aug. 14, 2001).)

Last year, the Massachusetts Supreme Judicial Court also cited public policy in deciding the fate of a divorcing couple's frozen embryos. In A.Z. v. B.Z., the court held unenforceable a consent form signed by a couple and an in vitro fertilization clinic. It provided that if the couple separated, their embryos would be given to the wife for implantation. (725 N.E.2d 1051 (Mass. 2000).)

While the court identified various legal insufficiencies in the form, including the absence of a provision specifying the duration of the agreement, Judge Judith Cowin's opinion left no doubt that the court's decision was influenced primarily by public policy considerations.

"Even had the husband and wife entered into an unambiguous agreement between themselves regarding the disposition of the frozen embryos, we would not enforce an agreement that would compel one donor to become a parent against his or her will," Cowin wrote.

She added, "It is well established that courts will not enforce contracts that violate public policy.... We derive from existing state laws and judicial precedent a public policy in this commonwealth that individuals shall not be compelled to enter into intimate family relationships."

John Robertson, a law professor at the University of Texas who has studied litigation involving these issues, believes that these cases were wrongly decided.

"Agreements made for the disposition of frozen embryos should be enforced," he said. "I think the recent trend [of refusing to enforce such agreements] is ill-founded and doesn't sufficiently protect the rights of women who go through in vitro fertilization with the assurance that they will be able to use all embryos if divorce occurs."

Robertson emphasized that before A.Z., courts endorsed the view that agreements providing for the disposition of frozen embryos should be enforced. In a 1992 Tennessee case--the first major case involving the custody of frozen embryos in a divorce situation--a woman wanted embryos that had been created during her marriage to be donated to a childless couple; her former husband wanted them destroyed.

The Tennessee Supreme Court said, "An agreement regarding disposition of any untransferred preembryos in the event of contingencies (such as ... divorce) should be presumed valid and should be enforced as between the progenitors." (Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).)

But the couple had never entered into an agreement about their embryos. The court said that under these circumstances, disputes should be resolved by weighing the parties' interests in using or not using the embryos. Awarding custody of them to the man, the court found that his interest in avoiding unwanted parenthood, with all its "possible financial and psychological consequences," outweighed his former wife's interest in donation.

The New York Court of Appeals also favored the enforcement of prior agreements about frozen embryos. In Kass v. Kass, the court said, "Parties should be encouraged in advance, before embarking on [in vitro fertilization] and cryopreservation, to think through possible contingencies and carefully specify their wishes in writing.... Advance directives ... both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision." (696 N.E.2d 174 (N.Y. 1998).)

Although Steven and Maureen Kass had signed an agreement to donate their embryos for research if they could not resolve the issue of disposition, Maureen later sought sole custody on the ground that the embryos represented her only opportunity for genetic motherhood. Steven objected to the burdens of unwanted fatherhood and argued that the agreement should be enforced.

The court agreed with him, finding that "the informed consents signed by the parties unequivocally manifest their mutual intention that ... the [embryos] be donated for research to the [in vitro fertilization] program."

As these cases illustrate, courts consistently have sided with the party opposed to implantation. Arthur Caplan, director of the Center for Bioethics in Philadelphia, believes that the party opposed to implantation should always prevail in these disputes.

"Courts should adhere to this overriding principle: It is morally wrong to force people to become parents without their permission," Caplan said. "I would even allow people who have given such permission to revoke it."

A tougher question

To date, no U.S. court has had to decide a case in which the enforcement of one party's right not to procreate effectively negated the other party's right to do so. The Israeli Supreme Court faced this situation in 1996 in Nachmani v. Nachmani. ([1996] 50(4) P.D. 661 (Isr.).)

There, a couple battled for control of 11 embryos that the woman wanted implanted in a surrogate. As in Davis, Kass, and A.Z., the man objected. Unlike those cases, implantation represented the woman's last chance to have a child. She had undergone a hysterectomy, and adoption was not an option for her since Israeli law prohibits single-parent adoption.

In a landmark decision, the Israeli Supreme Court granted custody of the embryos to the woman. The court rejected the man's argument that implantation would compel him to become a parent, reasoning that he had willingly given his sperm to the clinic and consented to in vitro fertilization. Instead, the court said, the decision denied him the right to prevent his wife from procreating.

Dicta in Davis and J.B. suggests that these cases might have been decided differently if those courts had been faced with a situation like the one in Nachmani.

"Ordinarily, the party wishing to avoid procreation should prevail, assuming that the other party has a reasonable possibility of achieving parenthood by means other than use of the embryos in question," the Tennessee Supreme Court held in Davis. "If no other reasonable alternatives exist, then the argument in favor of using the [embryos] to achieve pregnancy should be considered."

Similarly, in J.B., the New Jersey Supreme Court indicated that the man's ability to father additional children influenced its decision not to compel implantation. Judge Deborah Poritz wrote, "[The man's] right to procreate is not lost if he is denied an opportunity to use or donate the [embryos]. [He] is already a father and is able to become a father to additional children.... In contrast, [the woman's] right not to procreate may be lost through attempted use or through donation of the embryos."

She added, "We express no opinion [regarding] a case in which a party who has become infertile seeks use of stored embryos against the wishes of his or her partner."

Despite these statements, Caplan believes that if U.S. courts were confronted with the facts in Nachmani, they would still rule in favor of the party opposed to implantation. "You shouldn't force someone to reproduce without their permission even if it's the only way you can make a baby," Caplan said.

The United States has both a high rate of divorce and a high level of infertility. Various factors contribute to modern infertility, including women marrying later in life and deciding to forgo reproduction during their most fertile years. In addition, fertility services have become more widely available to the public, as medical insurance now covers many of these services, and the number of doctors specializing in infertility has increased.

Given this combination of factors, the amount of litigation between divorcing couples over the disposition of frozen embryos is bound to increase as well. Susan Crockin, a Newton, Massachusetts, attorney who has written extensively on the legal aspects of assisted reproductive technologies, believes that clarifying the legal status of embryos is essential in resolving issues about their disposition. "We do not have a clear definition of what embryos are," she said. "It's not right to treat them as property, the rights and obligations to which can be relinquished, because that flies in the face of public policy, which is designed to protect children."

Crockin noted that legislation proposed by the American Bar Association provides that couples who undertake in vitro fertilization can agree that in the event of divorce, one spouse would obtain the embryos and the other would surrender his or her rights and responsibilities to them. "If this were the law," Crockin said, "the opposite conclusion [of A.Z. and M.B.] would be just as reasonable."

Caplan advocates the creation of a standard contract in all 50 states that addresses what happens to frozen embryos in circumstances such as death and divorce. "Legislators, clinics, and the reproductive technology industry have failed to address these problems," he said. "It is irresponsible to potential children that this has not been addressed."