The Ambiguous Status of Frozen Embryos in Divorce Law

On April 11th, 1984 the New York Times reported that the first baby produced from a frozen embryo was born. This baby, and over one million babies after her, was frozen as an embryo, or pre-embryo, during in vitro fertilization, a process in which an egg and sperm are conjoined outside of the body. A frozen embryo shouldn’t be confused with a frozen egg, which just contains the mother’s DNA, or frozen sperm, which contains only the father’s DNA. Uniquely, an embryo involves DNA from both parents.[1] Frozen embryos can be viable for an average of up to ten years after fertilization. Because of their long storage viability and relatively large success rates of about 50%, there are over 400,000 frozen embryos currently stored in the United States alone. The numbers are only rising – especially as more data reveals the adverse effects of age and disease on pregnancy success. As freezing embryos becomes more common, so does the question of the embryo’s ownership in divorce; after all, it contains DNA from both the mother and father. Courts are left to answer whether an embryo is a piece of property or a person – and who gets control over it after the divorce papers are signed.

It’s important to note that the majority of divorce cases involving a frozen embryo do not end up in a legal battle that establishes court precedent. The agreements signed with an embryo-freezing agency are extensive and provide guidelines on what will happen to an embryo in the event that the parents separate. Usually, these embryos are donated to scientific research or are destroyed. However, there are cases in which the embryo gets adopted out or is used by one of the parents. When courts are left to decide the outcome of a frozen embryo, there are three different ways to interpret the arguments involved: the contractual approach, the balancing approach, and the contemporaneous mutual consent approach. Each of these approaches uses a distinct method to interpret each case, as elaborated below, but there are conflicting rulings on the outcome of the embryos even within each method.

The contractual approach dictates that courts will uphold the contract drawn by the freezing agency. This method was used in Kass v Kass (1998) in which Maureen and Steven Kass underwent IVF and froze five pre-embryos while married. In their divorce, Maureen sued for custody of the pre-embryos to implant them while Steven wished to uphold the contract they signed before undergoing IVF which stated that if they came to a disagreement about the embryos, they would be donated to research. The New York Court of Appeals ruled that the agreement clearly stated the couple’s intent to donate the embryo in the case of disagreement and hence declared it valid and binding; the embryos were donated to research.[2] Conversely, in McQueen v Gadberry (2016) the Missouri Court of Appeals ruled that the frozen pre-embryos must be kept undestroyed in the freezing facility. Jalesia McQueen wanted the pre-embryos implanted that she and her then-husband Justin Gadberry created, despite their divorce. Gadberry protested and wanted the embryos donated to either an infertile couple or to science. In this case, the court chose to disregard any contract made because implantation could violate public policy. The court cited Roe v Wade (1973) to justify that the embryos could not be implanted because it violated the father’s privacy rights. But instead of donating the embryos, the court ruled to maintain their storage, a hint to Missouri law § 1.205 stating that life begins at conception. Despite this, Appeals Judge Robert Clayton III wrote in his majority decision that these embryos are not considered children and their storage indicates that they are property. The two conflicting sides, one indicating person and the other property, within the same ruling reflect the inconsistencies around many embryo cases.[3]

As can be seen from the above contrasting rulings, contractual interpretation can lead to two core weaknesses. Contracts can have language interpreted differently among couples as well as professionals and hence not be applied in the way originally understood. For example, the difference between “may” and “shall” in such contracts can result in starkly different outcomes: one where an embryo doesn’t necessarily have to be destroyed (or kept) and the other where it must be destroyed (or kept). Secondly, a court can rule that a contract is unabiding to public policy and instead use the law to rule on the case, which creates a grey area due the the fact that there are few laws specifically on frozen pre-embryos. This creates no consistent ruling on what to do with the pre-embryos and makes the ruling dependent on ideology.

The court used the contractual approach in McQueen v Gadberry to rule that neither party could do anything with their frozen embryo unless there was a mutual agreement. But in Stratford v Stratford (2012), the Michigan Court of Appeals ruled that the frozen pre-embryo could be donated to another family for adoption, despite protest from Mother Jayane Stratford. Instead of the contractual approach, the Michigan Court of Appeals used the balancing method in which the court makes a ruling based on which side has the optimal interest. Father Jude Stratford wanted to adopt out the pre-embryo that he and his then wife Jayane Stratford procreated while Jayane wished to donate the embryo to science. The court ruled that Jude’s deep religious beliefs and the subsequent trauma to his mental health that destroying the embryo in research would entail outweighed Jayane’s interest in donating it to science. The embryo was subsequently put up for adoption.[4] In Szafranski v Dunston (2015) the United States Supreme Court refused to hear an appeal on a case where the Illinois Court of Appeals ruled in favor of Ms. Dunston, implanting an embryo of her and her ex-husband’s, Mr. Szafranski, despite his protest. This refusal therefore leaves the Illinois Court of Appeals decision undisputed which ruled that because Ms. Dunston could no longer have children due to chemotherapy, her interest in having a child outweighed Szafranski’s desire to not have the embryos used. The court ruled that when there is not a prior agreement establishing what to do with the embryos, the party for avoiding implantation shall prevail (and therefore the embryo shall go to research) unless there is an extenuating circumstance.[5][6] It can again be seen that this method to approach pre-embryo cases also results in differing opinions, depending on circumstance (most notably, health). However, the Illinois court did offer some sort of consistency when it ruled that in the lack of an extenuating circumstance, the pre-embryo shall be donated to science or destroyed.

The final method used by courts to interpret pre-embryo cases is contemporaneous mutual consent. This method leaves the disposition of the pre-embryo up to a mutual agreement of the couple during the divorce proceedings, thus disregarding any contract made before the pre-embryo harvesting. The contemporaneous mutual consent model avoids some weaknesses in the balancing method as courts do not have to weigh in whose position is superior and thus minimizes ideology influence, at least on the side of the court. The model also targets some of the weaknesses that come with the contractual method including conflicts with public policy and issues if a member of the party changes their mind after a contract is signed, as contracts are binding at the time they are signed. In support of this model, Iowa State Court claimed in In re Marriage of Witten (2003) that contemporaneous mutual consent abides by judicial and state law on personal and familial decisions: it is an individual’s right to make parental choices to be based on the person’s current beliefs, which may not be the same since the time of the contract. In the case of In re Marriage of Witten, the parties who were divorcing could not reach an agreement. Thus, the judge, in line with contemporaneous mutual consent, ruled that the embryos would remain in storage until the couple had reached an agreement or until the time that the storage facility originally agreed to hold the samples for expired. This reveals a large weakness in contemporaneous mutual consent method that deters many judges from using it: often the couple is in court because they are unable to come to a compromise, so this method often just elongates their disagreement.

It’s obvious that courts rule on a wide spectrum in pre-embryo divorce cases. Because of this spectrum and the lack of legislation to help prompt more consistent rulings, there is no definitive answer to an even deeper fundamental question, whether an embryo is person or property. Court decisions tend to lean on the side of property, especially after the Szafranski v Dunston decision in which the court ruled that the side advocating against implantation shall most usually prevail. But some cases do rule on the custody of the embryo, indicating a view that the embryo is a person. Just as the battle on reproductive and privacy rights continues to rage onwards, so will the issue on the status of embryos. In consideration of the parents who currently have to go through divorce and a potentially bitter embryo battle, one can only hope that an embryo’s status will soon be defined by law.

1 Associated Press, First Baby Born of Frozen Embryo, New York Times (April 11, 1984), online at (visited November 2017).

2 Kass v Kass, 91 N.Y.2d 554 (N.Y. ct. App. 1998).

3 MacElree Harvey LLP, The Legal Uncertainty Surrounding the Disposition of Frozen Embryos in American Divorce Proceedings, Initiative in Practice (MacElree Harvey LLP), online at (visited November 2017).

4 Stratford v Stratford, 1 (31st Cir 2008).

5 Michele M. Jochner, Disposition of Frozen Embryos is Governed by Contract, Family Law Topics Schiller DuCanto & Fleck LLP (2013), online at (visited November 2017).

6 Alliance for FP, Supreme Court Refuses to Hear Illinois Disputed Embryos Case, The Alliance Blog (Alliance for Fertility Preservation, March 13, 2016), online at (visited November 2017).