What to Do With The Frozen Embryos?: A Primer On Embryo Disposition

Since 1987, more than one million babies have been born in the U.S. using assisted reproductive technologies - mainly, in vitro fertilization (IVF). Most of these patients chose to cryopreserve excess embryos to attempt a pregnancy at a later time. In 2017, this practice noted storage facilities holding more than 600,000 frozen embryos and, reportedly, 70% of these patients waiting up to five years before finally deciding what to do with their embryos. As family building with IVF and cryopreservation becomes more prevalent for all types of modern families, surrounding legal and ethical issues have gained increasing visibility. While patients typically pre-determine embryo disposition in informed consent documents, one of the most common disputes involves “who gets the embryos” to use or dispose of, when the embryo creators (the patients) separate or divorce. With a time-delay from pre-determination to disputes, and very little statutory regulation or binding case law, most courts confronting the issue have had to develop frameworks for resolution that draw on contract law, public policy norms, and constitutional law, along with other factors and considerations.

This course aims to clarify the current legal and ethical guidelines that help shape embryo disposition decisions, as well as cultivate critical thinking skills to assist attorneys in guiding clients through potential disputes in an area of evolving law.

Learning Objectives:

1. Review assisted reproductive technologies and embryo cryopreservation, including embryo disposition options through the informed consent process
2. Identify current caselaw and the evolving legal framework in resolving embryo disputes
3. Appreciate the impact of social and ethical considerations on embryo dispute decisions
4. Discuss the role of informed consent v. contract in determining embryo ownership
5. Recognize evolving statutory advances that impact embryo disposition