Also known as: frozen preembryo · frozen pre-embryos · cryopreserved preembryos · frozen embryos
Written by attorneys — see sources below.
A cryogenically preserved product of in vitro fertilization that courts treat as a form of property subject to contract principles in disputes over possession and disposition rather than as a legal person. When progenitors have executed a prior agreement addressing disposition, courts generally enforce that agreement. Absent an agreement, courts balance the parties' interests and generally favor the party seeking to avoid procreation.
Freya Freeman and her former partner signed a cryopreservation consent form stating that any unused frozen preembryos would be donated to research upon divorce. After their marriage ended, Freya sought to implant the preembryos instead. The court enforced the written agreement and directed the clinic to proceed with donation.
Fatou Fall and her spouse executed a cryopreservation agreement with a fertility clinic that labeled the resulting frozen preembryos as the couple's property and authorized transfer on demand. When the clinic later refused to release the preembryos, the court applied the contract and ordered the clinic to surrender possession to the couple.
Felipe Figueroa died after creating frozen preembryos with his wife. She later sought to implant them and claim social security benefits for any resulting child. The court examined whether the preembryos could support posthumous parentage claims under state succession rules.
In January 1993, Lauren Woodward and her husband Warren Woodward, who had been married for approximately three and one-half years and remained childless, learned that Warren had leukemia. The couple arranged for a quantity of Warren's semen to be medically withdrawn and preserved through a process known as sperm banking before he began treatment. Warren underwent an unsuccessful bone marrow transplant and died in October 1993, after which Lauren was appointed administratrix of his estate. In October 1995, Lauren gave birth to twin girls who had been conceived through artificial insemination using Warren's preserved semen. In January 1996, she applied to the Social Security Administration for child's insurance benefits under 42 U.S.C. § 402(d)(1) and mother's benefits under 42 U.S.C. § 402(g)(1). The SSA denied the claims on the ground that the twins were not the husband's children within the meaning of the Act. In February 1996, while pursuing appeals from the SSA denial, Lauren filed a complaint for correction of birth record in the Probate and Family Court against the clerk of the city of Beverly, seeking to add Warren as the father on the twins' birth certificates. In October 1996, a Probate Court judge entered a judgment of paternity based on stipulations of voluntary acknowledgment of parentage and ordered the birth certificates amended to declare Warren the children's father. An administrative law judge conducted a de novo hearing. The judge concluded that the children did not qualify for benefits because they were not entitled to inherit from Warren under Massachusetts intestacy and paternity laws. The SSA appeals council affirmed that decision. Lauren appealed to the United States District Court for the District of Massachusetts. The court certified the question regarding the inheritance rights of posthumously conceived children under Massachusetts intestacy law to the Supreme Judicial Court because the parties agreed that a determination under state law was dispositive and no directly applicable precedent existed.
View caseFumiko Fujimoto sought to use frozen preembryos created during her marriage despite her former husband's objection and a changed family situation. The court declined to enforce prior consent forms that would have allowed implantation over the husband's current wishes.
A.Z. and B.Z. married in 1977. For the first two years they resided in Virginia, where both served in the armed forces. They underwent fertility testing after difficulties conceiving. The wife suffered an ectopic pregnancy that resulted in miscarriage and removal of her left fallopian tube. In 1980 the couple moved to Maryland for a year of additional fertility treatment that produced no pregnancy. The wife transferred to Massachusetts in 1988 while the husband remained in Maryland for schooling. He joined her in Massachusetts in 1991. After arriving in Massachusetts the wife began IVF treatments at a clinic. The couple first attempted a GIFT procedure on November 6, 1988, which produced another ectopic pregnancy and removal of the wife's remaining fallopian tube. They then pursued IVF from 1988 through 1991. Each time before egg retrieval the couple signed a clinic consent form. They executed seven such forms in total, the last in August 1991. On every form the wife wrote that the preembryos should be returned to her for implantation should the couple separate. The husband usually signed the forms while blank and before the wife completed the disposition language. The 1991 treatment produced twin daughters born in 1992, and two vials of preembryos were frozen for possible later use. In spring 1995, before the couple separated, the wife thawed one vial and had a preembryo implanted without informing the husband. He learned of the procedure from an insurance notice. Relations deteriorated, the wife obtained a protective order against the husband, the couple separated, and the husband filed for divorce. At the time of divorce one vial containing four frozen preembryos remained in storage. The husband moved for a permanent injunction prohibiting the wife from using the preembryos. The Probate and Family Court bifurcated the preembryos issue from the divorce action and held a hearing at which both parties were represented by counsel. The probate judge found the consent form unenforceable because of changed circumstances since 1991 and balanced the parties' interests, granting the husband a permanent injunction. The Supreme Judicial Court transferred the case on its own motion. On February 8, 2000, it issued an order affirming the Probate and Family Court judgment, with this opinion to follow.
View caseCourts enforce the parties' written agreement as controlling. The agreement's characterization of the preembryos as the couple's property determines possession and transfer rights.
A court balances the progenitors' relative interests in using or not using the preembryos. The balance ordinarily favors the party who wishes to avoid procreation unless compelling circumstances exist.
No. Internal labels or policies that are not part of the signed agreement do not alter the contractual allocation of property rights and disposition authority to the couple.
No. Courts reject personhood analysis in contractual settings and instead apply ordinary property and contract rules to resolve control and possession questions.
A subsequent research contract between the clinic and a third party cannot divest the progenitors of vested disposition rights created by the earlier cryopreservation agreement.
…He wrote that, on February 3, 1995, the wife "had a twin pregnancy" as a result of her insemination with the husband's "frozen/thawed semen" and that "[w]e were notified that she delivered twins in October, 1995." Before the administrative law judge the wife testified only that she and the husband had discussed…