Frozen embryo disputes revisited: A trilogy of procreation-avoidance approaches

Journal of Law, Medicine and Ethics

Volumn 29, Issue 2, 2001, Pages 197-202

  Daar, Judith F ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CONTRACT; CRYOPRESERVATION; DIVORCE; EMBRYO DISPOSITION; FEMALE; FERTILIZATION IN VITRO; FINANCIAL MANAGEMENT; GENETICS AND REPRODUCTION; HUMAN; INFORMED CONSENT; LEGAL APPROACH; LEGAL ASPECT; MALE; ORGANIZATION AND MANAGEMENT; PARENT; UNITED STATES;

GENETICS AND REPRODUCTION; LEGAL APPROACH;

CONTRACT SERVICES; CONTRACTS; CRYOPRESERVATION; DIVORCE; EMBRYO DISPOSITION; FEMALE; FERTILIZATION IN VITRO; HUMANS; INFORMED CONSENT; MALE; MASSACHUSETTS; OWNERSHIP; PARENTS; UNITED STATES;

EID: 0035380886     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720x.2001.tb00340.x     Document Type: Article

References (46)

1. It is estimated that of the 60.2 million women of reproductive age in the United States in 1995, 9.3 million availed themselves of some form of infertility service, ranging from medical advice, tests, and drugs, to assisted reproductive technologies. See J.C. Abma et al., "Fertility, Family Planning and Women's Health: New Data from the 1995 National Survey of Family Growth," Vital & Health Statistics, 23, no. 19 (1997): 65-66.
2. See R. Zolkos, "Medical Miracle, Liability Minefield: Exposures, Questions Grow with Reproductive Medicine," Business Insurance (June 3, 1996): 1 (reporting that the approximately 300 reproductive medicine clinics in the United States generate an estimated $350 million each year).
3. For a discussion of the medical techniques used to assist patients in achieving pregnancy, see L. Speroff, R.H. Glass, and N.G. Kase, Clinical Gynecologic Endocrinology and Infertility, 5th ed. (Baltimore: Williams & Wilkins, 1994).
4. G. Maranto, "Embryo Overpopulation," Scientific American (April 1996): 16.
5. The current divorce rate is calculated at somewhere between 40 to 50 percent for young people married for the first time. S. Stanley, "What Really Is the Divorce Rate?" Divorce Support, available at 〈http://www.divorcesupport.about.com/library/ weekly/aa061699.htm〉 (last visited June 13, 2001).
6. A.Z. v. B.Z., 725 N.E.2d 1051 (Mass. 2000).
7. The other two decisions are Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992) and Kass v. Kass, 696 N.E.2d 174 (N.Y 1998). In addition, at least two state intermediate appellate courts have ruled on the issue of embryo disposition, and both cases were granted review by the state supreme court. Litowitz v. Litowitz, 102 Wash. App. 934 (2000); J.B. v. M.B., 751 A.2d 613 (N.J. Super. Ct. App. Div. 2000).
8. A.Z., 725 N.E.2d at 1053.
9. Id. at 1054.
10. Id. at 1053.
11. A.Z. v. B.Z., No. 15-009-96, slip op. at 25 (Mass. Prob. & Fam. Law Ct. Suffolk County Mar. 25, 1996).
12. A.Z., 725 N.E.2d at 1056.
13. Id. at 1057.
14. See J.D. Calamari and J.M. Perillo, The Law of Contracts, 4th ed. (St. Paul, Minnesota: West Publishing Co., 1998): at 148 (noting that, "[t]he Plain Meaning Rule states that if a writing, or the term in question, appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any kind").
15. Id.
16. See Davis v. Davis, 842 S.W.2d 588, 596-97 (Tenn. 1992) (embryos are neither persons nor property, but occupy an interim category which entitles them to special respect because of their potential for human life). Cf. Kass v. Kass, 696 N.E.2d at 179 (holding that embryos are not persons for constitutional purposes, but expressly not addressing whether they are entitled to special respect).
17. See A.Z., No. 15-009-96, at 9.
18. A.Z., 725 N.E.2d at 1057.
19. R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998) (invalidating surrogacy agreement in which surrogate agrees to give up child at birth for lack of waiting period during which surrogate could change her mind).
20. Capazzoli v. Holzwasser, 490 N.E.2d 420 (Mass. 1986) (contract requiring individual to abandon marriage is against public policy and unenforceable).
21. A.Z., 725 N.E.2d at 1059.
22. See J.F. Daar, "Assisted Reproductive Technologies and the Pregnancy Process: Developing an Equality Model to Protect Reproductive Liberties," American Journal of Law & Medicine, 25 (1999): 454-77 (proposing a window of opportunity for a woman's use of disputed frozen embryos equal to a normal period of gestation).
23. A.Z., 725 N.E.2d at 1059.
24. Planned Parenthood v. Danforth, 428 U.S. 52, 69 (1976).
25. Planned Parenthood v. Casey, 505 U.S. 833, 895 (1992).
26. Roni D. v. Stephen K., 105 Cal. App. 3d 640 (1980).
27. In re Marriage of Buzzanca, 61 Cal. App. 4th 1410 (1998).
28. Id. at 1412.
29. Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).
30. Id. at 597.
31. Id. at 604.
32. Kass v. Kass, 696 N.E.2d 179 (N.Y 1998).
33. For an analysis of the contract language used in Kass, see Daar, supra note 22, at 470-72.
34. A.Z., 725 N.E.2d at 1058 n.22.
35. J.B. v. M.B., 751 A.2d 613 (N.J. Super. Ct. App. Div. 2000).
36. Id. at 616.
37. Id. at 620.
38. Id. at 619.
39. For an expanded analysis of the constitutionality of the procreation avoidance test, see Daar, supra note 22, at 458-69.
40. See J.A. Robertson, "Meaning What You Sign," Hastings Center Report, 28, no. 4 (1998): 22-23 (urging couples to control future disposition of embryos by signing prior directives).
41. See J. Sullivan, "SJC Rules Ex-Wife Can't Use Frozen Embryos," Boston Herald, Apr. 1, 2000, at 5 (quoting George Annas, chairman of the Health Law Department at Boston University School of Public Health, as lauding the decision in A.Z. for clarifying that public policy and individual rights are more important than contracts).
42. The widespread use of preconception agreements may also be the result of legislation mandating the use of such agreements in connection with assisted reproductive technologies. In Florida, for example, a recently enacted statute requires couples whose embryos are frozen for later use to execute a written agreement providing for disposition in the event of death, divorce, or other unforeseen circumstances. Fla. Stat. Ann. § 742.17 (1998). Similar bills are pending in New York and New Jersey. S. 1120, 22nd Leg., 1999-2000 Reg. Sess. (N.Y. 1999) (requiring advance directives as to disposition of cryopreserved eggs or embryos); A.B. 1116, 209th Leg., 1999-2000 Reg. Sess. (N.J. 2000) (same).
43. See E.A. Waldman, "Disputing over Embryos: Of Contracts and Consents," Arizona State Law Journal, 32 (2001): 897-940.
44. S.B. 1630, 1999-2000 Reg. Sess. (Cal. 2000). The bill also requires that the egg donor be provided with standardized written disclosures detailing the potential risks of oocyte donation. S.B. 1630, § 1702(b)(2)(D).
45. S.B. 1630 at § 1702(b)(1).
46. Governor Gray Davis, Press Release (on file with author).