ARTICLE: Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes Skip over navigation
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Copyright (c) 1999 Minnesota Law Review
Minnesota Law Review

ARTICLE: Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes

November, 1999

84 Minn. L. Rev. 55


Carl H. Coleman +


The first pregnancy resulting from the implantation of an embryo 1 that had previously been frozen was reported in Australia in 1983. 2 Since then, the freezing, or cryopreservation, of embryos created through in vitro fertilization (IVF) has become a standard part of the practice of assisted reproductive technologies (ARTs). 3 According to recent estimates, frozen embryos are now being accumulated at the rate of tens of thousands per year in the United States alone. 4

The long-term storage of frozen embryos can give rise to complex legal dilemmas, particularly when the couple that created the embryos disagrees about the embryos' fate. If the couple divorces, may one partner use the embryos to achieve a pregnancy over the other partner's objection? Can one partner insist on the destruction of the embryos regardless of the other partner's views? Equally difficult questions can arise when one or both members of the couple dies, disappears, or loses decision-making capacity.

Most states have not enacted legislation addressing these issues, 5 and there are few judicial decisions on point. However, the statutes and cases that exist, as well as most of the academic and professional commentary in the area, largely support the same general approach. Specifically, they maintain that disputes over the disposition of frozen embryos could be avoided if couples signed contracts, at the time they create embryos through IVF, specifying their instructions for the disposition of any excess frozen embryos in a variety of scenarios. 6 These contracts would be ...
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