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51 Ohio St. L.J. 407 (1990)
Prior Agreements for Disposition of Frozen Embryos

handle is hein.journals/ohslj51 and id is 419 raw text is: Prior Agreements for Disposition of Frozen Embryos JOHN A. ROBERTSON* The practice of freezing embryos' created by in vitro fertilization (IVF) of human eggs has led to the storage of thousands of embryos in laboratories, clin- ics, and hospitals across the country. While decisions to thaw or continue stor- age of these embryos have usually been unproblematic, disputes concerning fro- zen embryos have aroused national attention and shown the need for clear rules for determining who owns or controls those embryos.' This Article discusses the enforceability of a couple's prior agreement as a device for regulating the disposition of frozen embryos. I. THE INEVITABILITY OF EXTRA EMBRYOS In vitro fertilization as a treatment for infertility involves the surgical re- moval of eggs from the ovaries and their extracorporeal fertilization before placement in the uterus. Rather than rely on capturing the one egg naturally produced during a monthly cycle, the practice of IVF depends on hormonal stimulation of the ovaries to produce multiple eggs. Retrieval of ten or more eggs during a single cycle is now common. The routine retrieval of multiple eggs presents IVF programs and couples with a dilemma. If all eggs are inseminated, more embryos will result than can safely be placed in the uterus.' Many IVF programs and couples, however, are committed to placing all viable preembryos in the uterus. Rather than discard extra embryos, physicians generally will not inseminate more eggs than the couple would be willing to have placed in the uterus (usually three to five em- bryos), discarding extra, noninseminated eggs.4 If the inseminated eggs did not fertilize or cleave, the couple could be left with fewer than the optimal number of embryos for transfer to the wife's uterus. * Thomas Watt Gregory Professor, School of Law, University of Texas at Austin. This Article is dedicated to the memory of Professor Nancy K. Rhoden, who shared this Article's commitment to procreative liberty. I. To conform to popular usage, the term embryo rather than the technically more accurate term pre- embryo is used throughout this Article. As used here, embryo refers to all preimplantation stages of develop- ment after fertilization up until implantation in the uterus and the development of the embryonic axis. Shortly after implantation, when pregnancy begins, the pre-embryo becomes clearly established as an embryo. See Jones & Schrader, And Just What Is a Pre-Embryo?, 52 FERTILITY & STERILITY 189 (1989). 2. In the summer of 1989, two cases involving disposition of frozen embryos raised national attention. In Davis v. Davis, 1989 Tenn. App. LEXIS 641, a divorcing couple fought over what should happen to their seven frozen embryos. In York v. Jones, 717 F. Supp. 421 (E.D. Va. 1989), a couple wished to remove a frozen embryo from Norfolk to Los Angeles, against the wishes of the IVF program. In both cases there was not a clear prior directive for disposition of the embryos in question. For a more detailed account of these cases and their disposi- tion, see Robertson, In the Beginning: The Legal Status of Early Embryos, 76 VA. L. REv. 465, 489-91, 502-03, 510-11 (1990). 3. Fertilization occurs in over 90% of cases in which eggs are inseminated. To avoid the risk to offspring and mother of multifetal pregnancy, three or four embryos is the maximum number that can safely be placed in the uterus. 4. The couple will have to decide before insemination how many to fertilize because all fertilized eggs will be placed in the woman, even if they choose to inseminate more than three to five and all fertilize. There are malpractice risks here for the physicians. See Robertson, supra note 2, at 525-28.

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