ART & The Law: Frozen Embryo Custody

Custody cases are always murky, but what happens when a divorcing couple is battling over frozen embryos?

Recently, the Massachusetts Supreme Judicial Court ruled in a case between a divorced husband and wife on what should be done with their previously-frozen embryos. Initially brought into court in 1995, the final decision upheld the Probate judge's determination "that the husband's interest in avoiding procreation outweighed the wife's interest in having additional children and granted the permanent injunction in favor of the husband." Put simply, the woman will not be allowed to use the embryos to conceive.

In other assisted reproductive technology (ART) cases , the courts have decided in favor of enforcing previously-signed agreements between husband, wife, and clinic. The Massachusetts case of A.Z. vs. B.Z. is newsworthy, however, because of the dubious nature of the consent forms between the clinic and the couple.

ART & Law Today

While the governments of Australia, Canada, Europe and other nations have been struggling to guide the social, legal, and ethical boundaries of ART for years now, the United States is taking the course of allowing case after delayed case to sludge through the legal system toward precedents and, hopefully in the end, standards. Governmental control in any form, be it restrictions or standards, is not casually considered in the U.S.

As expected, the debates over ART are emotion-packed and, at times, fueled by political rhetoric. Elected officials feel the subtle tug of the pro-life/pro-choice debate within the ART arena. In our rights-conscious society, there seems to be no clear winner at present, and fertility specialists may be left in the role of arbiter.

Current U.S. Standards

At present, clinics offering IVF services are provided with recommendations by the American Society for Reproductive Medicine (ASRM). These opinions of the "Practice Committee" take into account any scientific, clinical, ethical, and financial concerns to offer evidence-based and consensus-based guidance for practitioners.

From "Elements To Be Considered In Obtaining Informed Consent For ART" (approved by the Board of Directors of ASRM, June 1997):

"In addition to information about chance of success and financial obligations, the following issues should be addressed in the process of obtaining consent. ..

II. Cryopreservation of Embryos

C. Disposition of frozen embryos including:

  1. Program's time limit on storage of frozen embryos
  2. Disposition of frozen embryos in the event of:
    1. Death of one or both partners
    2. Divorce or dissolution of partnership
    3. Nonpayment of storage fees
    4. Loss of contact with gamete providers

There are no other specifications as to the wording or execution of documents providing consent.