Frozen embryo disputes

Cryopreservation solved a medical problem and created a legal one. An embryo frozen in 1988 is still frozen. The marriage that produced it may not be. The clinic that stores it may have changed hands twice. And the two people whose consent created it may now want opposite things, or one of them may be dead.

American law had no ready category for this. Property law assumes a thing that can be divided or sold. Family law assumes a person whose interests a court can consider. An embryo in liquid nitrogen is treated by different courts as one, the other, or something in between — and the answer determines everything downstream, including whether a probate court has anything to administer.

The archive's position here is narrow and deliberate: report what each court actually held, precisely, and stop. These are among the most politically contested decisions in American law. What follows is the holdings and the statutes, not a view about them.

One number for scale, from the Tennessee court itself. When Davis v. Davis was decided in 1992, it was noted that at least 20,000 cryopreserved preembryos already existed in the United States. The dispute in that case concerned seven.

Davis v. Davis, and the framework nearly everyone borrowed

Junior Lewis Davis filed for divorce from Mary Sue Davis. The parties agreed on everything except seven cryopreserved preembryos held at a fertility clinic. Junior Davis wanted them not to be used. Mary Sue Davis wanted them donated to a childless couple.

The trial court held that the preembryos were human beings from the moment of fertilisation and awarded them to Mary Sue Davis. The Court of Appeals reversed, holding that Junior Davis had a protected right not to beget an unwanted child, and that no compelling state interest justified ordering implantation against a party's wishes.

The Tennessee Supreme Court, in Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), declined both of the available simple answers. It held that preembryos are neither persons nor strictly property, but occupy an interim category entitled to special respect because of their potential for human life. Then it built a decision procedure, and that procedure is what spread.

• First, the parties' own prior agreement controls. Where the gamete providers have agreed in advance what should happen, courts should enforce it.
• Second, absent an agreement, the court balances the parties' interests. Not the embryo's — the parties'.
• Third, in that balance, the party wishing to avoid procreation ordinarily prevails — provided the other party has a reasonable possibility of achieving parenthood by other means.
• Fourth, the result in Davis itself: Junior Davis prevailed.

The framework is elegant and it has an obvious pressure point. The tiebreaker favours the party who wants not to proceed, which means the person for whom these embryos are the last realistic chance at a genetic child is the person most likely to lose. Courts applying Davis have wrestled with the “reasonable possibility” proviso ever since, because it is doing an enormous amount of work in a single clause.

Kass v. Kass, and the consent form as the whole answer

Maureen Kass and Steven Kass underwent IVF at John T. Mather Memorial Hospital, producing five cryopreserved pre-zygotes. As part of the process they signed consent forms stating what should happen to any unused material, including in the event of a dispute. Weeks later, with divorce imminent, they signed a further document on June 7, 1993 confirming that the pre-zygotes should be disposed of in the manner set out in the consent form, and that neither of them nor anyone else would lay claim to custody of them.

Maureen Kass then changed her position and sought the pre-zygotes for an implantation procedure.

The New York Court of Appeals, in Kass v. Kass, 91 N.Y.2d 554 (1998), decided May 7, 1998, held that IVF consent agreements should generally be presumed valid, binding, and enforceable, and that the disposition directions they contain should be upheld in a subsequent dispute. On the record before it, the court found that the forms had clearly expressed the couple's mutual intent to donate the material to research if a dispute arose. Steven Kass prevailed.

Kass is, in effect, the first Davis step taken seriously. It says that people can settle this in advance, that the settlement will be honoured, and that the moment to think carefully is the moment the clinic hands you a form — not the moment the relationship ends.

Not every state agrees that an advance agreement should be enforced against a party who has changed their mind, particularly where enforcement would compel someone to become a genetic parent. Several courts have adopted a contemporaneous mutual consent approach instead, under which neither party can be held to a prior direction and nothing happens without agreement at the time. The result of that approach, in practice, is indefinite storage.

LePage, and what the legislature did three weeks later

In LePage v. Center for Reproductive Medicine, P.C., decided February 16, 2024, the Supreme Court of Alabama held 7–2 that parents of frozen embryos destroyed at an IVF clinic could proceed with claims under Alabama's Wrongful Death of a Minor Act, a statute enacted in 1872.

The holding, stated precisely: under the plain language of the Act, the term “child” includes an unborn child regardless of location — inside or outside a biological uterus. The court further held that even if the Act's language were ambiguous, the Sanctity of Unborn Life Amendment to the Alabama Constitution, ratified by voters in 2018, would require an interpretation favouring protection of the unborn.

It is a statutory-construction holding about who counts as a “child” under one nineteenth-century wrongful death statute in one state. It is not a holding about probate, inheritance, or the constitutional status of embryos generally. It was nevertheless read by IVF providers in Alabama as creating potential liability for the ordinary attrition of the IVF process, and several clinics suspended services.

The legislature responded within three weeks. On March 6, 2024, Governor Kay Ivey signed SB 159, granting broad civil and criminal immunity to IVF providers in Alabama. Clinics subsequently resumed operations.

Whatever one thinks of the decision or the statute — and people think a great deal, in both directions — the sequence is the useful part for anyone with material in storage: a court can change the classification of your embryos in a single morning, and a legislature can change it back. The one thing that does not depend on either is a written agreement you signed yourself.