Balancing Interests in Frozen Embryo Disputes: Is Adoption Really a Reasonable Alternative?

Indiana Law Journal

Volumn 74, Issue 2, 1999, Pages 711-734

  Theyssen, David L ^a,b  

^a INDIANA UNIVERSITY   (United States)

^b INDIANA UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ADOPTION; ARTICLE; CRYOPRESERVATION; DAVIS V. DAVIS; EMBRYO; FERTILIZATION IN VITRO; GENETICS AND REPRODUCTION; HUMAN; KASS V. KASS; LEGAL APPROACH; LEGAL ASPECT; ORGANIZATION AND MANAGEMENT; UNITED STATES;

DAVIS V. DAVIS; GENETICS AND REPRODUCTION; KASS V. KASS; LEGAL APPROACH;

ADOPTION; CRYOPRESERVATION; EMBRYO; FERTILIZATION IN VITRO; HUMANS; NEW YORK; OWNERSHIP; TENNESSEE;

EID: 0033237154     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (239)

1. See Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).
2. There is some confusion as to the proper term to be given to these tissues. See id. at 592-94. One expert at the trial testified that "preembryo" was the term to be used until 14 days after fertilization. Id. For the sake of simplicity, I will refer to the tissues as embryos.
3. For a description of IVF, see infra Part II.A.
4. See Davis, 842 S.W.2d at 600.
5. The court believed prior agreements between the parties should be presumed valid and enforced. See id. at 597.
6. See id. at 603.
7. See id.
8. See id.
9. No. 19658/93, 1995 WL 110368 (N.Y. Sup. Ct. Jan. 18, 1995), rev'd, 663 N.Y.S.2d 581 (App. Div. 1997), aff'd, 696 N.E.2d 174 (N.Y. 1998).
10. See Kass, 663 N.Y.S.2d at 586-87 (plurality opinion). The plurality's opinion was affirmed by a unanimous opinion of the court of appeals, who held that the couples' prior agreement controlled. See Kass, 696 N.E.2d at 182.
11. See Kass, 663 N.Y.S.2d at 591, 594.
12. Id. at 592 (Friedmann, J., concurring).
13. See id. at 593.
14. See id. at 594, 600 (Miller, J., dissenting, joined by Altman, J.).
15. See id. at 600.
16. The Davis court noted that the Davises had attempted adoption previously and that Mary Sue Davis had at one time at least considered foregoing genetic parenthood. Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992).
17. ANN M. HARALAMBIE, THE CHILD'S ATTORNEY 203 (1993)
18. (quoting Sanford N. Katz, Introduction to JOHN TRISELIOTIS, IN SEARCH OF ORIGINS: THE EXPERIENCE OF ADOPTED PEOPLE at xi (Beacon Press 1975) (1973)).
19. The Davies court expressly rejected such a veto power to the objecting spouse. Davis, 842 S.W.2d at 604. However, by including adoption as an alternative the court may have done just what it said it was not going to do.
20. See infra Part III.B for a discussion of adoption.
21. Two unpublished lower court opinions also decided for the party resisting implantation of frozen embryos. A Michigan court decided that a divorcing couple's frozen embryos may not be implanted into the woman. The judge concluded that the embryos were not children and the man had a right to avoid procreation. See Karl Leif Bates, Dad Wins Embryos Court Fight, DETROIT NEWS, June 25, 1998, at C1. A Massachusetts probate court declined to award custody to a woman desiring to implant embryos despite consent forms giving control of the embryos to the wife in the event of a divorce. The court found that the consent agreements did not control because of a change in circumstances, and the husband's interest in avoiding parenthood outweighed the wife's interest in becoming pregnant. The court believed, as the Davis court did, that the party wishing to avoid procreation should normally prevail as long as the other party had a reasonable possibility of achieving parenthood through other means. See The Week's Opinions, MASS. LAW. WEEKLY, Oct. 7, 1996, at 4 (containing an excerpt from AZ v. BZ (Lawyers Weekly No. 15-008-96)); David Yas, Estranged Wife Denied Use of Frozen Embryos: Ruling Made Despite Couple's Agreement, MASS. LAW. WEEKLY, Oct. 7, 1996, at 1.
22. Two unpublished lower court opinions also decided for the party resisting implantation of frozen embryos. A Michigan court decided that a divorcing couple's frozen embryos may not be implanted into the woman. The judge concluded that the embryos were not children and the man had a right to avoid procreation. See Karl Leif Bates, Dad Wins Embryos Court Fight, DETROIT NEWS, June 25, 1998, at C1. A Massachusetts probate court declined to award custody to a woman desiring to implant embryos despite consent forms giving control of the embryos to the wife in the event of a divorce. The court found that the consent agreements did not control because of a change in circumstances, and the husband's interest in avoiding parenthood outweighed the wife's interest in becoming pregnant. The court believed, as the Davis court did, that the party wishing to avoid procreation should normally prevail as long as the other party had a reasonable possibility of achieving parenthood through other means. See The Week's Opinions, MASS. LAW. WEEKLY, Oct. 7, 1996, at 4 (containing an excerpt from AZ v. BZ (Lawyers Weekly No. 15-008-96)); David Yas, Estranged Wife Denied Use of Frozen Embryos: Ruling Made Despite Couple's Agreement, MASS. LAW. WEEKLY, Oct. 7, 1996, at 1.
23. Two unpublished lower court opinions also decided for the party resisting implantation of frozen embryos. A Michigan court decided that a divorcing couple's frozen embryos may not be implanted into the woman. The judge concluded that the embryos were not children and the man had a right to avoid procreation. See Karl Leif Bates, Dad Wins Embryos Court Fight, DETROIT NEWS, June 25, 1998, at C1. A Massachusetts probate court declined to award custody to a woman desiring to implant embryos despite consent forms giving control of the embryos to the wife in the event of a divorce. The court found that the consent agreements did not control because of a change in circumstances, and the husband's interest in avoiding parenthood outweighed the wife's interest in becoming pregnant. The court believed, as the Davis court did, that the party wishing to avoid procreation should normally prevail as long as the other party had a reasonable possibility of achieving parenthood through other means. See The Week's Opinions, MASS. LAW. WEEKLY, Oct. 7, 1996, at 4 (containing an excerpt from AZ v. BZ (Lawyers Weekly No. 15-008-96)); David Yas, Estranged Wife Denied Use of Frozen Embryos: Ruling Made Despite Couple's Agreement, MASS. LAW. WEEKLY, Oct. 7, 1996, at 1.
24. See Consumer Protection Issues Involving In Vitro Fertilization Clinics: Hearing Before the Subcomm. on Regulation, Bus. Opportunities, and Energy of the House Comm. on Small Bus., 101st Cong. 60 (1989) [hereinafter Hearing] (report of the American Fertility Society). Ten million out of 67 million reproductively active couples are infertile. See Dominick Vetri, Reproductive Technologies and United States Law, 37 INT'L & COMP. L.Q. 505, 505 (1988). Infertility is defined as an inability to conceive after 12 months of intercourse using no contraception. See Hearing, supra, at 61.
25. See Jennifer Marigliano Dehmel, Note, To Have or Not to Have: Whose Procreative Rights Prevail in Disputes Over Dispositions of Frozen Embryos?, 27 CONN. L. REV. 1377, 1380 (1995).
26. See John A. Robertson, In the Beginning: The Legal Status of Early Embryos, 76 VA. L. REV. 437, 440 (1990).
27. See John A. Robertson, Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reproduction, 59 S. CAL. L. REV. 939, 948 (1986). Retrieval of 10 or more eggs from the woman is not uncommon. See John A. Robertson, Prior Agreements for Disposition of Frozen Embryos, 51 OHIO ST. L.J. 407, 407 (1990) [hereinafter Robertson, Prior Agreements].
28. See John A. Robertson, Embryos, Families, and Procreative Liberty: The Legal Structure of the New Reproduction, 59 S. CAL. L. REV. 939, 948 (1986). Retrieval of 10 or more eggs from the woman is not uncommon. See John A. Robertson, Prior Agreements for Disposition of Frozen Embryos, 51 OHIO ST. L.J. 407, 407 (1990) [hereinafter Robertson, Prior Agreements].
29. See Robertson, supra note 23, at 439.
30. See Robertson, Prior Agreements, supra note 24, at 407 n.3. Implanting more eggs into the uterus would place risk on the offspring and on the mother through multifetal pregnancy. See id.
31. See Jennifer L. Carow, Note, Davis v. Davis: An Inconsistent Exception to an Otherwise Sound Rule Advancing Procreational Freedom and Reproductive Technology, 43 DEPAUL L. REV. 523, 529 (1994). Without cryopreservation, all eggs must be implanted immediately or they will expire. See Marcia Joy Wurmbrand, Frozen Embryos: Moral, Social, and Legal Implications, 59 S. CAL. L. REV. 1079, 1083 (1986).
32. See Jennifer L. Carow, Note, Davis v. Davis: An Inconsistent Exception to an Otherwise Sound Rule Advancing Procreational Freedom and Reproductive Technology, 43 DEPAUL L. REV. 523, 529 (1994). Without cryopreservation, all eggs must be implanted immediately or they will expire. See Marcia Joy Wurmbrand, Frozen Embryos: Moral, Social, and Legal Implications, 59 S. CAL. L. REV. 1079, 1083 (1986).
33. See Wurmbrand, supra note 27, at 1083.
34. See Robertson, Prior Agreements, supra note 24, at 408. For one woman's description of the IVF process, see GENE COREA, THE MOTHER MACHINE 174-75 (1985) (describing repeated tests, programmed sex life, surgical procedures, a miscarriage, and menopause at the age of 31 due to the "medical and surgical mayhem" on the ovaries).
35. See Bette Harrison, Special Delivery: A Baby, ATLANTA J., Dec. 21, 1997, at 6D. Medication costs, which run between $2500 to $3000 per cycle, are extra. See Abigail Trafford, Medicine's Money Back Warranty, WASH. POST, Aug. 5, 1997, at Health 6.
36. See Bette Harrison, Special Delivery: A Baby, ATLANTA J., Dec. 21, 1997, at 6D. Medication costs, which run between $2500 to $3000 per cycle, are extra. See Abigail Trafford, Medicine's Money Back Warranty, WASH. POST, Aug. 5, 1997, at Health 6.
37. See Hearing, supra note 21, at 2.
38. See Harrison, supra note 30, at 6D (profiling a clinic with higher than average success rates).
39. See Samuel A. Gunsburg, Note, Frozen Life's Dominion: Extending Reproductive Autonomy Rights to In Vitro Fertilization, 65 FORDHAM L. REV. 2205, 2211 (1997).
40. See id.
41. See Davis v. Davis, 842 S.W.2d 588, 591 (Tenn. 1992).
42. Tubal pregnancy, also called ectopic pregnancy, is "a pregnancy that develops outside the uterus." THE AMERICAN MEDICAL ASSOCIATION ENCYCLOPEDIA OF MEDICINE 389 (Charles B. Clayman ed., 1989) [hereinafter ENCYCLOPEDIA]. The pregnancy can occur in the cervix, uterine tube, ovary, or the abdominal or pelvic cavity. See THE MERCK MANUAL 1868 (Robert Berkow ed., 16th ed. 1992). In a tubal pregnancy, the fetus must be removed, as it can be fatal if untreated. See ENCYCLOPEDIA, supra, at 389.
43. Tubal pregnancy, also called ectopic pregnancy, is "a pregnancy that develops outside the uterus." THE AMERICAN MEDICAL ASSOCIATION ENCYCLOPEDIA OF MEDICINE 389 (Charles B. Clayman ed., 1989) [hereinafter ENCYCLOPEDIA]. The pregnancy can occur in the cervix, uterine tube, ovary, or the abdominal or pelvic cavity. See THE MERCK MANUAL 1868 (Robert Berkow ed., 16th ed. 1992). In a tubal pregnancy, the fetus must be removed, as it can be fatal if untreated. See ENCYCLOPEDIA, supra, at 389.
44. See Davis, 842 S.W.2d at 591.
45. See id.
46. See id.
47. Id. The birth mother changed her mind about putting the child up for adoption at the last minute. See id. See also infra Part III.B.1 for a description of the adoption process and its cost.
48. See Davis, 842 S.W.2d at 591. To produce ova, the IVF attempts entailed a month of injections to shut down Mary Sue's pituitary gland and eight days of intramuscular injections to stimulate her ovaries, all despite her fear of needles. See id.
49. See id. at 592; see also supra text accompanying notes 27-30 (describing cryogenic preservation).
50. See Davis, 842 S.W.2d at 592.
51. See id. Junior testified that he knew their marriage "was not very stable" but he had hoped a child would improve it. Id.
52. See id.
53. See Davis v. Davis, No. E-14496, 1989 WL 140495, at *9 (Tenn. Cir. Q. Sept. 21, 1989), rev'd, No. 180, 1990 WL 130807 (Tenn. Ct. App. Sept. 13, 1990), aff'd, 842 S.W.2d 588 (Tenn. 1992).
54. Parens patriae is a concept used by courts "when acting on behalf of the state to protect and control the property and custody of minors and incompetent persons." BARRON'S LAW DICTIONARY 360 (4th ed. 1996).
55. Davies, 1989 WL 140495, at *11.
56. See id.
57. See Davis v. Davis, No. 180, 1990 WL 130807, at *1 n.1 (Tenn. Ct. App. Sept. 13, 1990), aff'd, 842 S.W.2d 588 (Tenn. 1992).
58. Davies, 1989 WL 140495, at *1.
59. See Davis, 1990 WL 130807, at *2 (noting that after viability, abortion can be performed to save the life of the mother, and, furthermore, the state's wrongful death, murder, and assault statutes differentiated between abortion and other acts harming a fetus).
60. See id.
61. See Skinner v. Oklahoma, 316 U.S. 535 (1942) (recognizing the right to procreate as one of a citizen's basic civil rights).
62. "The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices." Carey v. Population Servs. Int'l, 431 U.S. 678, 685 (1977); see also Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965) (recognizing the right to use contraception).
63. See Davis, 1990 WL 130807, at *2.
64. See id. at *3. The court used York v. Jones, 717 F. Supp. 421 (E.D. Va. 1989) as part of the basis for its decision that both parties shared an interest in the embryos, which assumed that frozen embryos were the joint property of the couple when the couple who created the embryos wished to have them transferred to another facility. The York court held that the agreement between the couple and the facility created a bailment relationship, obligating the facility to return the embryos to the couple once the purpose of the bailment had terminated. Id. at 424-25.
65. See Davis v. Davis, 842 S.W.2d 588, 595 (Tenn. 1992).
66. 410 U.S. 113 (1973) (refusing to hold that fetuses possess independent rights).
67. See Davis, 842 S.W.2d at 596. See Robert J. Muller, Note, Davis v. Davis: The Applicability of Privacy and Property Rights to the Disposition of Frozen Preembryos in Intrafamilial Disputes, 24 U. TOL. L. REV. 763 (1993), for an argument that the court should not have abandoned the property law approach so quickly.
68. See Davis, 842 S.W.2d at 596. See generally Dehmel, supra note 22, at 1382-85 (summarizing the various legal views proposed to govern the status of frozen embryos).
69. See Davis, 842 S.W.2d at 596.
70. See id. at 597.
71. See id. Because the embryos had not been implanted in Mary Sue, these agreements were distinguishable from agreements concerning abortion, which are unenforceable because of a woman's rights to privacy and autonomy. See Planned Parenthood v. Danforth, 428 U.S. 52, 68-75 (1976). For a discussion of prior agreements and their enforceability, see Robertson, Prior Agreements, supra note 24, at 414-18, suggesting prior agreements should be enforced to maximize reproductive freedom, provide certainty, and minimize disputes.
72. See Davis, 842 S.W.2d at 598; see also Dehmel, supra note 22, at 1398-1401 (opining that an estoppel theory of implied contract in embryo disputes is misplaced because of changes in circumstances not considered at the time of initial consent). But see Alise R. Panitch, Note, The Davis Dilemma: How to Prevent Battles over Frozen Embryos, 41 CASE W. RES. L. REV. 543, 573-76 (1991) (recommending that a spouse who initially consents to IVF should have no power to interrupt the process later based on an estoppel theory); Mario J. Trespalacios, Comment, Frozen Embryos: Towards an Equitable Solution, 46 U. MIAMI. L. REV. 803, 830 (1992) (suggesting that the court in Davis should have fashioned the terms of the contract to meet the possibilities, taking into account the parties' knowledge of the others' desires).
73. See Davis, 842 S.W.2d at 598; see also Dehmel, supra note 22, at 1398-1401 (opining that an estoppel theory of implied contract in embryo disputes is misplaced because of changes in circumstances not considered at the time of initial consent). But see Alise R. Panitch, Note, The Davis Dilemma: How to Prevent Battles over Frozen Embryos, 41 CASE W. RES. L. REV. 543, 573-76 (1991) (recommending that a spouse who initially consents to IVF should have no power to interrupt the process later based on an estoppel theory); Mario J. Trespalacios, Comment, Frozen Embryos: Towards an Equitable Solution, 46 U. MIAMI. L. REV. 803, 830 (1992) (suggesting that the court in Davis should have fashioned the terms of the contract to meet the possibilities, taking into account the parties' knowledge of the others' desires).
74. See Davis, 842 S.W.2d at 598.
75. See id.
76. See id.
77. See id. at 599-600 (citing Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (striking down the sterilization of criminals and describing the right to procreate as "one of the basic civil rights of man")).
78. Id. at 600 (quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)) (emphasis omitted). The court also noted that the right to procreational autonomy was recognized in the reproductive freedom cases. See id. at 601; see also Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965).
79. Davis, 842 S.W.2d at 601; see also Gunsburg, supra note 33, at 2215 (agreeing with the Davis court's constitutional conclusions, but feeling the court did not provide sound reasoning). But see Robertson, supra note 23, at 500 (finding it unlikely the U.S. Supreme Court would extend fundamental rights to include avoiding unknown biological offspring); Muller, supra note 60, at 785-86 (arguing that the U.S. Supreme Court would not likely find avoiding genetic parenthood a fundamental right); Leanne E. Murray, Note, Davis v. Davis: The Embryonic Stages of Procreational Privacy, 14 PACE L. REV. 567, 592 (1994) (believing it likely the U.S. Supreme Court would find that the state's interest in potential life outweighs the gamete donor's interest in avoiding genetic parenthood).
80. See Davis, 842 S.W.2d at 601. But cf. Planned Parenthood v. Danforth, 428 U.S. 52, 69-71 (1976) (denying men the ability to control abortions because a woman bears the child and is more intimately affected by the pregnancy). The Davis court noted that women suffer more severe trauma both physically and mentally through the IVF process but gave it no special consideration. See Davis, 842 S.W.2d at 601.
81. See Davis, 842 S.W.2d at 602. The state had no compelling interest until the end of the first trimester; any other interest was slight and outweighed by the donor's interest in parenthood. See id.
82. Id. at 603.
83. See id. But see Panitch, supra note 65, at 576 (discounting the psychological burden of genetic parenthood and suggesting financial responsibility could easily be eliminated). Junior did not want his biological child to grow up without a father. As a boy he had severe problems caused by the separation of his parents and the nervous breakdown of his mother. See Davis, 842 S.W.2d at 603-04.
84. See Davis, 842 S.W.2d at 604.
85. The court thus ignored the "sweat equity" theory, which theorizes that because IVF places a greater physical burden on the woman than the man, the female who has relied to her detriment should be given the greater decision making authority. Dehmel, supra note 22, at 1399.
86. See Davis, 842 S.W.2d at 604.
87. See id.
88. Id. (emphasis added). But see Murray, supra note 71, at 594-95 (pointing out that women have historically been able to force genetic parenthood on men simply by giving birth to a jointly conceived child even when the man did not intend to conceive a child).
89. See Davis, 842 S.W.2d at 604; see also infra Part III.A (describing the possibility of another IVF attempt).
90. See Davis, 842 S.W.2d at 604. See also infra Part III.B for an analysis of adoption as a reasonable alternative.
91. See Davis, 842 S.W.2d at 604.
92. For a critical analysis of the Davis "exception" when there are no alternatives to achieve parenthood, see Carow, supra note 27, at 567-68, suggesting that the exception undermines the balancing test by giving one factor too much weight and favors women over men as they are the only ones who could use the embryos themselves. See also Dehmel, supra note 22, at 1403 (describing the exception as an illusion because reasonable alternatives should be interpreted broadly to include genetic and non-biological alternatives, such as adoption). But see Panitch, supra note 65, at 574-78 (favoring an implantation rule based on an estoppel argument, also discounting the psychological effects on the objector, opining that the woman's effort during the IVF process, as well as the cost of alternative means of parenthood, is undervalued as women suffer both psychological and physical problems); Trespalacios, supra note 65, at 822-24 (arguing the Davis decision is gender biased and discounts the woman's countervailing interests).
93. See Davis, 842 S.W.2d at 604.
94. See id. But see Trespalacios, supra note 65, at 824 (claiming the court's equal balancing of interests gives the objecting party an automatic veto).
95. A woman may have a hard time finding a program willing to use donor sperm and IVF with an unmarried woman. See Robertson, supra note 23, at 481 n.109. Most clinics presently restrict the use of IVF to married couples. See Hearing, supra note 21, at 71. A woman could also lose the capacity to produce eggs, or be Unable to safely undergo ovarian stimulation and retrieval. See COREA, supra note 29, at 174-75 (describing a woman reaching menopause at age 31); Robertson, supra note 23, at 481 n.109. The risk of genetically defective eggs increases if the woman were much older than she were when the initial embryos were produced. See id. In addition, the woman may be able to afford to have the embryos thawed and implanted, but not have the $8000 needed to undergo another full IVF cycle. See id.
96. The level of difficulty in adopting a child depends on the race, health, and age of the desired child. See infra Part III.B.1.
97. See Dehmel, supra note 22, at 1403 (recommending that reasonable alternatives include non-biological alternatives in future disputes).
98. See Kass v. Kass, 663 N.Y.S.2d 581, 583 (App. Div. 1997), aff'd, 696 N.E.2d 174 (N.Y. 1998).
99. See id. at 583-84.
100. See id. at 584.
101. See id.
102. See id.
103. See id.
104. See id. at 585. Maureen Kass's sister had initially agreed to act as a surrogate, but later changed her mind. See id. at 584.
105. See id. at 585.
106. See Kass v. Kass, No. 19658/93, 1995 WL 110368, at *2 (N.Y. Sup. Ct. Jan. 18, 1995), rev'd, 663 N.Y.S.2d 581 (App. Div. 1997), aff'd, 696 N.E.2d 174 (N.Y. 1998).
107. See id.
108. See id. (citing Planned Parenthood v. Danforth, 428 U.S. 52 (1976) (denying men a voice in abortion decisions) and Roe v. Wade, 410 U.S. 113 (1973)).
109. Id. at *3.
110. See id.
111. Id.
112. See id. This is in effect the implied contract or estoppel theory. See Dehmel, supra note 22, at 1398-1401; Panitch, supra note 65, at 574-75; Trespalacios, supra note 65, at 829-30.
113. See Kass, 1995 WL 110368, at *3-4.
114. See id. at *4. The court felt the provision concerning what would happen in the event the parties could not agree to the embryos' disposition was inapplicable in a divorce proceeding, as a different provision explicitly governed what would happen in the event of divorce. See id.
115. See id. Steven's rights were to be protected by a directive that Maureen implant the embryos within a medically reasonable time. See id. at *5. The court did not consider his possible financial obligations, determining it would more properly be considered when and if a pregnancy occurred. See id.
116. See Kass v. Kass, 663 N.Y.S.2d 581, 585 (App. Div. 1997), aff'd, 696 N.E.2d 174 (N.Y. 1998).
117. Id. at 586.
118. See id. at 588 (plurality opinion).
119. See id. at 589.
120. See id. at 590.
121. Id. at 591 (Friedmann, J., concurring).
122. See id. at 592.
123. The concurrence felt the strict balancing test could violate the Supreme Court's decision in Planned Parenthood v. Danforth, 428 U.S. 52 (1976), by allowing one person to interfere with another person's decision not to have offspring before the point of viability. See Kass, 663 N.Y.S.2d at 592 (Friedmann, J., concurring). But see Kristine E. Luongo, Comment, The Big Chill: Davis v. Davis and the Protection of "Potential Life"?, 29 NEW ENG. L. REV. 1011, 1038 n.283 (1995) (emphasizing that the Danforth decision was based on the man not being able to control the woman's choice, since she is more affected by the pregnancy); Murray, supra note 71, at 571-72 (pointing out the Court has summarily dismissed the man's rights in past cases because of the woman's overriding rights).
124. Kass, 663 N.Y.S.2d at 592 (Friedmann, J., concurring). One commentator has coined this the "double consent" rule, since it requires consent before participation in the IVF program and again before implantation. See Panitch, supra note 65, at 572. The Davis court expressly rejected such a veto power. Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992).
125. See Kass, 663 N.Y.S.2d at 592 (Friedmann, J., concurring). The fact that a biological parent had an unwaivable duty to support the child financially was also a factor. See id. at 593.
126. See id.
127. 119; Id.; see also Robertson, Prior Agreements, supra note 24, at 419 (arguing that a party who made an agreement not to use the embryos in the event of divorce should not be able to impose unwanted parenthood on another merely "because she has changed her mind and wishes to use these embryos rather than go to the trouble of creating new ones"). But see Panitch, supra note 65, at 576-77 (suggesting that Robertson undervalues the woman's psychological and physical effort in the IVF process).
128. Kass, 663 N.Y.S.2d at 593 (Freidmann, J. concurring).
129. See id.
130. See id. at 593-94.
131. See id. at 594 (Miller, J., dissenting).
132. See id. The dissent felt the plurality and concurrence had created a new evidentiary standard by making Maureen Kass show she had no other means to achieve parenthood before a hearing was ever held. See id. at 602.
133. See id. at 599.
134. See id.
135. See id. at 600. A woman may no longer be able to produce eggs, see supra note 87, or she may not be able to afford the $8000 cost, see supra text accompanying note 30.
136. See Kass, 663 N.Y.S.2d at 600 (Miller, J., dissenting). See infra Part III for a discussion of whether adoption should be considered a reasonable alternative.
137. See Kass, 663 N.Y.S.2d at 600 (Miller, J., dissenting).
138. See id.
139. See id. at 601.
140. See id.
141. See id. at 602.
142. See id.
143. See Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998).
144. See id. at 180.
145. See id. at 181.
146. For the balance of this Note unless otherwise specified, any reference to the Kass court's opinion will refer to the opinion of the appellate division.
147. See Kass v. Kass, 663 N.Y.S.2d 581, 593, 600 (App. Div. 1997), aff'd, 696 N.E.2d 174 (N.Y. 1998); Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992).
148. See Robertson, supra note 23, at 480.
149. See id. Panitch, supra note 65, at 576, argues Robertson overlooks several important considerations, namely that the objecting spouse may not have to support the child financially, there may not be any psychological burden on the objecting spouse, and the physical and emotional costs on the spouse favoring implantation are undervalued.
150. See Panitch, supra note 65, at 576. If a woman in her mid-thirties could go through IVF again but chose to adopt, the lengthy adoption process could foreclose another attempt at IVF if the adoption did not succeed. See Vetri, supra note 21, at 506.
151. See Hearing, supra note 21, at 71.
152. See supra note 87.
153. See Robertson, supra note 23, at 481.
154. David M. Brodzinsky, A Stress and Coping Model of Adoption Adjustment, in THE PSYCHOLOGY OF ADOPTION 3,4 (David M. Brodzinsky & Marshall D. Schechter eds., 1990).
155. See Lois Oilman & Susan Freivalds, How to Realize the Joy of Adopting a Child, MONEY, Nov. 1997, at 160, 160. New tax credits and some employer adoption programs can decrease these expenses. See id. at 162.
156. See Marianne Berry, Risks and Benefits of Open Adoption, FUTURE OF CHILDREN, Spring 1993, at 125, 125. The federal government collects no comprehensive national statistics on adoption. See Kathy S. Stolley, Statistics on Adoption in the United States, FUTURE OF CHILDREN, Spring 1993, at 26, 26. Consequently, the estimated number of adoptions occurring each year varies widely. Total adoptions in 1990 were estimated at 118,529. See id. at 29.
157. See Marianne Berry, Risks and Benefits of Open Adoption, FUTURE OF CHILDREN, Spring 1993, at 125, 125. The federal government collects no comprehensive national statistics on adoption. See Kathy S. Stolley, Statistics on Adoption in the United States, FUTURE OF CHILDREN, Spring 1993, at 26, 26. Consequently, the estimated number of adoptions occurring each year varies widely. Total adoptions in 1990 were estimated at 118,529. See id. at 29.
158. See Berry, supra note 148, at 125.
159. See NATIONAL COMM. FOR ADOPTION, ADOPTION FACTBOOK, ADOPTION - WHERE DO I START? 1 (1991).
160. In 1973, an estimated 19% of white mothers gave up their babies. See Stolley, supra note 148, at 32. From 1982 through 1988, only an estimated 3% did so. See id.
161. See Cynthia Crossen, Hard Choices: In Today's Adoptions, the Biological Parents are Calling the Shots, WALL ST. J., Sept. 14, 1989, at A1. For all adoptions, the number of women seeking to adopt surpasses the annual number of unrelated adoptions (adoptions by those not related to each other) by over three to one. See Stolley, supra note 148, at 37.
162. See NATIONAL COMM. FOR ADOPTION, supra note 150, at 3.
163. See Crossen, supra note 152, at A1; see also NATIONAL COMM. FOR ADOPTION, supra note 150, at 1 (noting most adoption agencies prefer to place children with parents of the same ethnic background).
164. See NATIONAL COMM. FOR ADOPTION, ADOPTION FACTBOOK - SINGLE PARENT ADOPTION: WHAT YOU NEED TO KNOW 2 (1991).
165. Being single also virtually eliminates one's chance of becoming a parent via IVF. See supra note 87.
166. See NATIONAL COMM. FOR ADOPTION, supra note 150, at 2. The chances of a single person adopting are increased when adopting a special needs child (one with a disability), or an older child. See id.
167. See Stolley, supra note 148, at 37 (citing a 1982 survey).
168. See NATIONAL COMM. FOR ADOPTION, supra note 155, at 1.
169. See id. at 3. Since many of the women in IVF disputes have delayed parenthood, the chances of them being close to the 40-year age limit are also increased.
170. See id.
171. See Crossen, supra note 152, at A1.
172. Kenneth W. Watson, The Case for Open Adoption, PUB. WELFARE, Fall 1988, at 24, 24. Sorosky defines open adoption as "an adoption in which the birth parent meets the adoptive parents, relinquishes all legal, moral, and nurturing rights to the child, but retains the right to continuing contact and knowledge of the child's whereabouts and welfare." ARTHUR D. SOROSKY ET AL., THE ADOPTION TRIANGLE 207 (1978). Roughly half of all adoptions conducted through agencies each year are open adoptions. See Gilman & Freivalds, supra note 147, at 164.
173. Kenneth W. Watson, The Case for Open Adoption, PUB. WELFARE, Fall 1988, at 24, 24. Sorosky defines open adoption as "an adoption in which the birth parent meets the adoptive parents, relinquishes all legal, moral, and nurturing rights to the child, but retains the right to continuing contact and knowledge of the child's whereabouts and welfare." ARTHUR D. SOROSKY ET AL., THE ADOPTION TRIANGLE 207 (1978). Roughly half of all adoptions conducted through agencies each year are open adoptions. See Gilman & Freivalds, supra note 147, at 164.
174. See Gilman & Freivalds, supra note 147, at 164. There is usually an evaluation done by the adoption agency even before the stage where the birth mother picks from adoptive couples. This study evaluates the prospective adoptive family by examining the physical and emotional environment in which the child will be placed, taking into account the couple's income, assets, the stability of their marriage, and their health. Physical exams may even be required. See NATIONAL COMM. FOR ADOPTION, supra note 150, at 3; see also STANLEY B. MICHELMAN & MEG SCHNEIDER, THE PRIVATE ADOPTION HANDBOOK 16-28 (1988) (describing the pre-approval process). Obviously, adoptive couples can feel uncomfortable in being assessed for suitability, as it goes against the norms of parenthood to have one's motives probed and domestic management evaluated before having a child. See Rob Clayton & Mary Clayton, An Alternative Family, in ADOPTION 100, 104 (Philip Bean ed., 1984). Indeed, the home study process has been described as "going through the ringers of a washing machine." SOROSKY ET AL., supra note 163, at 75.
175. See Gilman & Freivalds, supra note 147, at 164. There is usually an evaluation done by the adoption agency even before the stage where the birth mother picks from adoptive couples. This study evaluates the prospective adoptive family by examining the physical and emotional environment in which the child will be placed, taking into account the couple's income, assets, the stability of their marriage, and their health. Physical exams may even be required. See NATIONAL COMM. FOR ADOPTION, supra note 150, at 3; see also STANLEY B. MICHELMAN & MEG SCHNEIDER, THE PRIVATE ADOPTION HANDBOOK 16-28 (1988) (describing the pre-approval process). Obviously, adoptive couples can feel uncomfortable in being assessed for suitability, as it goes against the norms of parenthood to have one's motives probed and domestic management evaluated before having a child. See Rob Clayton & Mary Clayton, An Alternative Family, in ADOPTION 100, 104 (Philip Bean ed., 1984). Indeed, the home study process has been described as "going through the ringers of a washing machine." SOROSKY ET AL., supra note 163, at 75.
176. See James Lardner, 'Open' Adoption and Closed Minds, WASH. POST, Dec. 31, 1989, at C3. It is estimated that half of the independent adoptions (adoptions through private sources, such as an attorney, and not through an agency) attempted each year fall through, usually because the birth mother decides to keep her child. See Gilman & Freivalds, supra note 147, at 171. Almost one-third of all adoptions are handled independently. See Stolley, supra note 148, at 31.
177. See Crossen, supra note 152, at A1.
178. See id.
179. See Lardner, supra note 165, at C3. The adoptive parents may even be invited to attend the delivery. See id.
180. See Crossen, supra note 152, at A1.
181. See id. Some studies have shown that despite the initial uneasiness about the open adoption process, adoptive parents were generally satisfied with the outcome. See Annette R. Appell, Blending Families Through Adoption: Implications for Collaborative Adoption Law and Practice, 75 B.U. L. REV. 997, 1018 & nn. 106-07 (1995). For a discussion of the risks and benefits of open adoption, see generally Berry, supra note 148.
182. Lardner, supra note 165, at C3.
183. Smith v. Organization of Foster Families for Equal. & Reform, 431 U.S. 816, 844 n.51 (1997) (noting that families not based on blood ties can contain many of the characteristics of a natural family, but holding that the state may remove foster children from foster homes when due process procedures are met).
184. See Appell, supra note 170, at 1000-01.
185. See HARALAMBIE, supra note 17, at 203.
186. Mark Hansen, Fears of the Heart, A.B.A. J., Nov. 1994, at 58, 61 (quoting Ken Watson, Assistant Director of the Chicago Child Care Society and Member of the Board of Directors of the American Adoption Congress). One commentator states, "Adoption is not a cure for childlessness: [but] it may provide the childless couple with a substitute for their own child." Peter M. Bromley, Aided Conception: The Alternative to Adoption, in ADOPTION 174, 174 (Philip Bean ed., 1984).
187. Mark Hansen, Fears of the Heart, A.B.A. J., Nov. 1994, at 58, 61 (quoting Ken Watson, Assistant Director of the Chicago Child Care Society and Member of the Board of Directors of the American Adoption Congress). One commentator states, "Adoption is not a cure for childlessness: [but] it may provide the childless couple with a substitute for their own child." Peter M. Bromley, Aided Conception: The Alternative to Adoption, in ADOPTION 174, 174 (Philip Bean ed., 1984).
188. See SOROSKY ET AL., supra note 163, at 47-72, for a discussion of the effects on the biological parents.
189. This triad has been referred to as the adoption triangle. See id. at 220.
190. See Brodzinsky, supra note 146, at 4.
191. See SOROSKY ET AL., supra note 163, at 74.
192. See id. See Janet Hopkins Dickson, Comment, The Emerging Rights of Adoptive Parents: Substance or Specter?, 38 UCLA L. REV. 917, 929-32 (1991), for a description of the traditional social stigma associated with infertility.
193. See SOROSKY ET AL., supra note 163, at 74.
194. See id.
195. See Bromley, supra note 175, at 174.
196. See id.
197. See VANGIE BERGUM, A CHILD ON HER MIND 21 (1997).
198. See id.
199. See id. at 34.
200. See id. at 144.
201. See id. at 37.
202. KATHRYN ALLEN RABUZZI, MOTHER WITH CHILD 54 (1994).
203. See ANN DALLY, MOTHERS 26 (Cox & Wyman 1976).
204. See SOROSKY ET AL., supra note 163, at 75. This lack of parental identity can often be traced back to the home study. See id. See supra note 164, for a discussion of the home study process.
205. See H. DAVID KIRK, ADOPTIVE KINSHIP: A MODERN INSTITUTION IN NEED OF REFORM 33 (1982).
206. See id.
207. See id. at 32.
208. The adoptive parents must await finalization, which is based on "their continued fitness as adoptive parents." Philip S. Welt, Adoption and the Constitution: Are Adoptive Parents Really "Strangers Without Rights"?, 1995 ANN. SURV. AM. L. 166, 170.
209. See In re John Doe, 638 N.E.2d 181 (Ill. 1994) (denying a rehearing on a ruling revoking a final decree of adoption); In re Clausen, 502 N.W.2d 649 (Mich. 1993) (ordering an adopted child to be returned to the biological parents); Welt, supra note 196 (suggesting the adoptive parents' constitutional rights should be given weight in disputes between the adoptive and biological parents). Cases such as these provoke the fears of adoptive parents that their babies will be taken away. See KATHLEEN SILBER & PHYLIS SPEEDLIN, DEAR BIRTHMOTHER: THANK YOU FOR OUR BABY 3 (1983) (quoting one adoptive mother as saying, "[t]he birthparents were now villainous kidnappers who would one day reappear to claim their own").
210. In re John Doe, 638 N.E.2d at 190. See generally Welt, supra note 196, for a description of the issues involved in disputes between biological and adoptive parents.
211. See Carl Schoenberg, On Adoption and Identity, 53 CHILD WELFARE 549, 549 (1974).
212. See SOROSKY ET AL., supra note 163, at 76.
213. See id. at 98.
214. "Psychological parent" is defined as "one who, on a continuing, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills the child's psychological needs for a parent, as well as the child's physical needs." JOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD 98 (1973).
215. See id. at 22.
216. See SOROSKY ET AL., supra note 163, at 74.
217. See id.
218. See Watson, supra note 163, at 27.
219. See id. at 24.
220. See Appell, supra note 170, at 1016. Studies have also shown that adoptees have higher incidences of psychological problems. At one time, it was estimated that 13% of psychiatric patients in the United States were adoptees. See SOROSKY ET AL., supra note 163, at 96; Michael Wierzbicki, Psychological Adjustment of Adoptees: A Meta-Analysis, 22 J. CLIN. CHILD PSYCHOL. 447, 447-54 (1993) (citing studies showing that adoptees had a significantly higher level of maladjustment, but pointing out accuracy could be limited by including all adoptees in the study, regardless of the child's age at the time of adoption). But cf. David M. Brodzinsky, Long-term Outcomes in Adoption, FUTURE OF CHILDREN, Spring 1993, at 153, 157 (indicating that while adoptees are more vulnerable to emotional, behavioral, and academic problems than their nonadopted peers, they are well within the normal range of behavior).
221. See Appell, supra note 170, at 1016. Studies have also shown that adoptees have higher incidences of psychological problems. At one time, it was estimated that 13% of psychiatric patients in the United States were adoptees. See SOROSKY ET AL., supra note 163, at 96; Michael Wierzbicki, Psychological Adjustment of Adoptees: A Meta-Analysis, 22 J. CLIN. CHILD PSYCHOL. 447, 447-54 (1993) (citing studies showing that adoptees had a significantly higher level of maladjustment, but pointing out accuracy could be limited by including all adoptees in the study, regardless of the child's age at the time of adoption). But cf. David M. Brodzinsky, Long-term Outcomes in Adoption, FUTURE OF CHILDREN, Spring 1993, at 153, 157 (indicating that while adoptees are more vulnerable to emotional, behavioral, and academic problems than their nonadopted peers, they are well within the normal range of behavior).
222. See SOROSKY ET AL., supra note 163, at 89-103. "Many adopted children feel that they were given away because there was something wrong with them from the beginning." Annette Baran & Rueben Pannor, Perspectives on Open Adoption, FUTURE OF CHILDREN, Spring 1993, at 119, 120.
223. See Watson, supra note 163, at 27. Another commentator maintains that the adoptive family "cannot provide the adoptee with the physical, genetic, or ethnic connection that the adoptee shares uniquely with the birth family." Appell, supra note 170, at 999.
224. Arthur D. Sorosky et al., Identity Conflicts in Adoptees, 45 AM. J. ORTHOPSYCHIATRY 18, 20 (1975).
225. See SOROSKY ET AL., supra note 163, at 99; see also Sorosky et al., supra note 211, at 18 (explaining that adoptees are more vulnerable to the development of identity problems in late adolescence and young adulthood). "The process of developing an individual identity is more complicated for adoptees because they live with the knowledge that an essential part of their personal history remains on the other side of the adoption barrier." Baran & Pannor, supra note 209, at 120.
226. See Watson, supra note 163, at 27-28.
227. See SOROSKY ET AL., supra note 163, at 88.
228. See id. at 89.
229. See Sorosky et al., supra note 211, at 19.
230. See id. at 24.
231. See Baran & Pannor, supra note 209, at 120.
232. Appell, supra note 170, at 999.
233. This phenomenon has led to an increased demand for openness in the adoption process. See id. at 1009. See supra text accompanying notes 162-70 for a description of open adoption.
234. Economic evidence from Davis and Kass supports this conclusion. The cost of an adoption can range from $10,000 to $30,000 for a healthy infant, not including the value of the time spent waiting to receive the child. See Gilman & Freivalds, supra note 147, at 160. The Davises spent $35,000 in their attempts to conceive naturally. See Davis v. Davis, 842
235. Kass, 663 N.Y.S.2d at 593 (Friedmann, J., concurring) (emphasis added) (citation omitted).
236. Id. at 600 (Miller, J., dissenting).
237. See supra Part III.B.1.
238. Bromley, supra note 175, at 174.
239. See Appell, supra note 170, at 998.