Content

Table of Cases.3

Table of Abbreviations3

Introduction..3-4

Objectives....4
Scope and Limitation...4
Review of Literature4
Research Question...4
Research Methods....4

The In Vitro Fertilization Process5

Status of an Embryo...6-9
In Context of Tort Law
In Context of Criminal Law
In Context of Contract Law
In Context of Constitutional Law
In context of Jurisprudence
The Role of The Legislature And The Courts In Disputes Over Frozen Embryos9
Embryo As property with relevant case laws...9-12
Conclusion..13-14
Bibliography15

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Table of Cases

Davis v. Davis

Del Zio v. Presbyterian Hospital Medical Center

Kass v. Kass

Roe v. Wade

York v. Jones

Table of Abbreviation

1. ALR American Law Report

2. LoY L R Loyola Law Review
3. NE North Eastern Reporter
4. SW South Eastern Reporter
5. Supp Suppository

Introduction

Any highly advanced and innovative technology tends to present the legal system with a myriad
of problems. This is especially true in the case of frozen embryos because the focus of the
technology deals with creating life. Moral, ethical and legal implications cloud the issues
surrounding frozen embryos causing great controversy. Freezing unused embryos, however, is
now standard practice at most fertility clinics. The ability to freeze embryos allows the creation
of more embryos than are required for implantation at any one treatment cycle while preserving
the option of future pregnancies and avoiding the destruction of the unused embryos The
progenitors have a number of options for the disposition of their frozen embryos. They may use
the embryos for attempts at a future pregnancy, donate them to be used for research, give them to
another couple who hopes to initiate a pregnancy, leave them in cryostorage indefinitely, or
request that they be discarded. This project deals with the question currently facing the courts:
once an embryo is frozen, what should become of it in a dispute over what should happen to it,
and who has the right to make that decision? In addressing this question, this paper will first
establish the process through which frozen embryos are created, than discussing on the status of

2
the embryo in context of tort law, constitutional law, criminal law, contract law and
jurisprudence. I had also discussed the role of the legislature and the courts in disputes over
frozen embryos and at last I had dealt with the embryo regard as a property with some case laws.

Objective

To briefly analyse the process of fertilization

To explore the status of an embryo in context of different law
To analyse embryo as property with relevant case laws

Scope and Limitation

The scope of my project is confined to various case laws where status of a stored embryo is
recognized by the court through legal proceeding.

Review of Literature

Michelle F. Sublett Frozen Embryos: What Are They and How Should the Law Treat Them, 38
Clev. St. L. Rev. 585 (1990)
This law journal had very well dealt the issues of frozen embryo starting with the process of
fertilization. This article also dealt with the reproductive rights of a woman like Right to
Procreate, Right to avoid Procreation with various case laws. This article also dealt with the
moral and ethical beliefs regarding frozen embryo.

Research Question

What is the meaning of In Vitro Fertilization Process?

What is the need of Contract while fertilization?

Research Methodology

In this project, we have adopted Doctrinal type of research. Doctrinal research is essentially a
library-based study, which means that the materials needed by a researcher may be available in
libraries, archives and other data-bases. This research is totally based on library. Various types of
books were used to get the adequate data essential for this project. We also used computer

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laboratory to get important data related to this topic. Several good websites we found which were
very useful to better understand this topic.

The In Vitro Fertilization Process

In vitro fertilization (or fertilization; IVF) is a process by which an egg is fertilized by sperm
outside the body: in vitro ("in glass"). The in vitro fertilization process begins by giving
fertilization drugs to the woman in order for her to produce an increased amount of eggs.1 The
process involves monitoring and stimulating a woman's ovulatory process, removing an ovum or
ova (egg or eggs) from the woman's ovaries and letting sperm fertilize them in a liquid in a
laboratory. The fertilized egg (zygote) is cultured for 26 days in a growth medium and is then
implanted in the same or another woman's uterus, with the intention of establishing a successful
pregnancy.
IVF techniques can be used in different types of situations. It is a technique of assisted
reproductive technology for treatment of infertility. IVF techniques are also employed in
gestational surrogacy, in which case the fertilized egg is implanted into a surrogate's uterus, and
the resulting child is genetically unrelated to the surrogate. In some situations, donated eggs or
sperms may be used. Some countries ban or otherwise regulate the availability of IVF treatment,
giving rise to fertility tourism. Restrictions on availability of IVF include single females, lesbians
and surrogacy arrangements. Due to the costs of the procedure, IVF is mostly attempted only
after less expensive options have failed.
The first successful birth of a "test tube baby", Louise Brown, occurred in 1978. Louise Brown
was born as a result of natural cycle IVF where no stimulation was made. Robert G. Edwards,
the physiologist who developed the treatment, was awarded the Nobel Prize in Physiology or
Medicine in 2010. With egg donation and IVF, women who are past their reproductive years or
menopause can still become pregnant. Adriana Iliescu held the record as the oldest woman to
give birth using IVF and donated egg, when she gave birth in 2004 at the age of 66, a record
passed in 2006. After the IVF treatment many couples are able to get pregnant without any
fertility treatments.

1
Wadlington, ARTIFICIAL CONCEPTION: THE CHALLENGE FOR FAMILY LAW, 69 VA. L.REv. 465, 466-
67 (1983)

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Status of an Embryo

In Context of Tort Law

A survey of present law in the United States is necessary to assess the rights of the unborn. The
issue of whether an unborn is entitled to any rights, and if so what they are, has appeared in
several different areas of law. Although these areas of law are not always consistent in outcome,
this analysis will help in developing a basis for further determining how disputes over frozen
embryos should be resolved.

In the area of tort law, statutes generally dictate that a fetus, at least an unviable one,2 may not
sustain an action for wrongful death unless first born alive. Such statutes are derived from the
common law rule that unviable fetuses are unable to sustain actions for wrongful death because
they are not yet persons in existence. An embryo is not as advanced as a fetus, let alone a viable
fetus. Therefore, a frozen embryo should not have the right to object to being disposed of or of
"dying a passive death". Further, because a frozen embryo of two to eight cells does not
constitute a viable fetus, the state should not be able to intervene on the embryo's behalf and
object to disposal on the grounds that it would be a wrongful death.

Another question in the torts area of rights of an unborn fetus, is whether a fetus can maintain an
action for injuries occurring before birth. Every jurisdiction now allows a fetus to bring such an
action, provided that the fetus is born alive. However, there is still some dispute as to whether the
fetus has to be viable at the time of injury in order to recover after being born alive. In most
cases in which recovery has occurred the fetus has been viable. This would appear to give a fetus
limited rights, dependent upon live birth. Therefore, under this type of limited right, an embryo
should not be able to maintain an action against parents or physician for wrongful disposal
because the embryo will never be born alive, a pre-requisite to maintaining this type of action.
Secondly, at the time of the alleged "harm" the frozen embryo is not viable.

In Context of Criminal Law

In the area of criminal law, an action for homicide will not lie for the killing of an unborn fetus.
The rationale behind this policy decision has its roots in common law. Common law defines

2
Andrews, THE LEGAL STATUS OF THE EMBRYO, 32 LoY. L.REV. 357, 368 (1986)

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homicide as "the killing of one human being by another.3 From this definition courts reasoned
that there could be no homicide without the killing of another human being. An unborn child was
not a human being within the meaning of such definition because an unborn child was not
considered a person or a reasonable creature in being before its birth. This, therefore, precluded a
conviction for killing an unborn fetus. Modern jurisprudence has addressed this problem by
having the states adopt various statutes to determine who is a person for purposes of homicide.
Most state statutes follow the common law rule by requiring that the fetus be born alive in order
to constitute a person.

In Context of Contract Law

In area of contract law, there had been some cases where contract between the parties made the
work easier in context of the treatment of the embryo after the dispute between the spouses like
in Kass v. Kass 4 the divorcing couple had signed a consent form which stipulated that both
parties had to agree to release of the embryos, and that any frozen embryos would be donated to
medical research if no agreement could be reached as to what to do with the frozen embryos after
the divorce.
If there is no contract between the spouses than it is very much difficult for the court to decide
what to do with the embryo like in case of Davis v. Davis5, the divorcing couple did not have
either an oral or written agreement regarding the disposition of any frozen embryos. A trial court
decision which awarded custody of frozen embryos to the wife was reversed by the court of
appeals on the grounds that the husband had a constitutional right not to be forced to father a
child. The Tennessee Supreme Court upheld the appellate court decision; in weighing the
interests of each party it concluded that the husbands interest in avoiding parenthood was more
significant than the wifes interest in donating the embryos to another couple for implantation.
The case may be distinguished from the Roman case by the fact that there was no prior oral or
written agreement as to the disposition of the embryos, and the embryos were not going to be
implanted in the ex-wife.

3
Annotation, HOMICIDE BASED ON KILLING OF UNBORN CHILD, 40 A.L.R.3d 444, 446 (1971).
4
Kass v. Kass, 696 N.E.2d 174 (New York 1998)
5
Davis v. Davis, 842 S.W.2d 588 (Tennessee 1992)

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In Context of Constitutional Law

In the area of constitutional law, the Supreme Court has refused to interpret the Fourteenth
Amendment, containing the word "person", to encompass the unborn. The Court in Webster v.
Reproductive Health Services did not disturb this aspect of the holding. The only type of rights
constitutional law has afforded fetuses is that a viable fetus may be protected by the state.
Previously in Roe v. Wade6, the Court made this distinction by the trimester approach stating that
the state had no right to protect the fetus in the first trimester, a limited right to protect the
mother's health in the second trimester (but not the fetus), and a full right to protect the fetus in
the third trimester. The Court's rationale for protecting the fetus in the third trimester is based on
the conclusion that the fetus typically becomes viable at the beginning of the third trimester.
Although Webster has done away with the trimester analysis, the Court upholds the state's
application of viability as the point at which the state may step in and assert a legitimate interest
in protecting the fetus. The Court does hint that perhaps in the future it will uphold the state's
right to assert an interest in the fetus before viability. However, since the Court declined to set
any definite lines in this area, especially by declining to rule on the issue of whether life begins
at conception, the rights of a fetus are not substantially improved, let alone the rights of a lesser
developed form of pre-life such as the pre-embryo.
Since the various areas of law have not afforded fetuses any concrete rights to maintain actions
unless live birth occurs, or in the case of constitutional law, any right to be protected under the
Constitution unless live birth is probable, it is doubtful that pre-embryos or frozen embryos
should be afforded any right to be born. This is especially true considering that even at the best
clinics there is less than a ten percent chance of creating a live birth baby from a frozen embryo.
This relatively small likelihood of creating a "person" does not encourage bestowing any rights
upon frozen embryos. Even if the standard of viability for determining when life begins is
changed to a new standard such as brain birth, a four- to eight-celled zygote would not be
afforded protection as a person. Only a drastic change stating that life begins at conception
would confer "personhood" status upon a frozen four- to eight-celled embryo.

6
410 U.S. 113

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In context of Jurisprudence

The rights of an unborn child are recognized in various different legal contexts; e.g. in criminal
law causing death of foetus has been held to be an offence under Sections 312 to 316 of the
Indian Penal Code, and the law of property considers the unborn child in being for all purposes
which are to its benefit, such as taking by will or descent. An unborn child aged five months
onwards in mothers womb till its birth is treated as equal to a child in existence. The unborn
child to whom the live birth never comes is held to be a person who can be the subject of an
action for damages for his death. The foetus is actually a loss of child in the offing.
In The Hindu Succession Act, 1956 Section 20 states the Right of the child in the womb which
states as follows A child who was at the time of the death of an intestate and who is
subsequently born alive have the same right to inherit to the interest as if he or she had been
before the death of the intestate, and the inheritance shall be deemed to vest in such as case with
effect from the date of the death of the intestate.

The Role of the Legislature and the Courts in Disputes over Frozen Embryos

Recognizing that there is no "right" answer to whether these zygotes are life, it appears that the
legislature, not the legal system, is the proper forum within which to resolve this difficult issue.
However, because the legislature currently refuses to address such a problem 7 , and there is
nowhere for disillusioned parties to turn except the courts, our legal system must attempt to come
to grips with these legal issues.

Embryo As property with relevant case laws

At least one group of medical scholars considers frozen embryos as a form of property. In
creating an Ethical Statement on In Vitro Fertilization, the American Fertility Society explicitly
stated: "It is understood that the gametes and concept are the property of the donors. The donors
therefore have the right to decide at their sole discretion the disposition of these items."

7
The only state which has statutorily begun to address the issue of the status of a frozen embryo is Louisiana.
However, this statute, treating embryos as life, poses serious constitutional problems.

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The governmental commission in England, the Warnock Committee, did not explicitly dub
frozen embryos as "property" but rather said that "the couple who stored the embryo should have
the use and disposal rights."

If the frozen embryo is indeed property, as these two organizations suggest, the type of property
and the rights attached thereto must be examined.

An embryo is not acquired by gift, inheritance or purchase, but rather created by the effort of
both spouses during marriage. The Uniform Marital Property Act provides that all property
acquired during marriage other than by gift, inheritance, or other exceptions is marital property.
Most states have adopted the idea of marital property. In this system there is a presumption that
anything acquired during the marriage is marital property, but that this presumption may be
rebutted by offering evidence that the specific property at issue falls into one of the named
exceptions.

Frozen embryos do not appear to fit into one of the categories exempting them from
classification as marital property. However, because frozen embryos are such a new and
technologically advanced concept, intertwined with the question of life, a deeper analysis than
simply whether they are covered by an "exception" is needed.

A male's sperm is unquestionably his own personal property. Likewise, a female's egg is her own
personal property. Both sperm and egg could be said to contain the potential for life, provided
that they unite with the proper opposite gamete, but none would question an individual's right to
dispose of his or her own gamete. Because the sperm and egg have united to become one, the
resulting concept cannot be said to be the personal property of either the male or the female, but
rather the marital property of both.

The doctrine of commingling, borrowed from community property and used in marital property
cases, can be applied here. The doctrine states that "separate property becomes marital property
if inextricably mingled with marital property or with the separate property of the other spouse.

Therefore it can be argued that when the egg and sperm unite, they are no less the property of the
gamete owners, but rather since they are inseparable without resorting to destruction, they
become marital property instead of personal property.

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The problem with treating frozen embryos as marital property comes into existence when the
marital property is to be distributed. Many states have equitable distribution statutes which
authorize the court to divide the property and set up guidelines. These statutes provide for the
division to be "equitable, or just, or reasonable" but often times leave the precise manner to the
discretion of the courts. The Uniform Marriage and Divorce Act lists several factors judges
should consider in making an equitable distribution of the property. However, many of these
guidelines deal with monetary value and economic circumstances. Clearly, these types of
guidelines are inapplicable to resolving a dispute over such property as a frozen embryo.

If the frozen embryos are to be treated as property, the court or legislature must develop some
sort of guidelines for distributing this type of property. The possibility of distributing on the basis
of intended use, and the problems this type of guideline could create will be discussed infra.

York v. Jones8 was the first judicial decision that treated a couples ex utero embryos as property,
thus subjecting embryos to a bailment contract. The Yorks sought to obtain their one remaining
frozen embryo from the in vitro fertilization program where it had been created9. They planned
to ship it to an institution in California for transfer to the wifes uterus there10. A federal district
court held that the relationship between a fertility center and the progenitors of the embryos
created at the clinic was that of bailor/bailee relationship11. Accordingly, the clinic was under a
legal obligation to release the embryos to the Yorks control when the Yorks wished.12

The York court did not engage in metaphysical speculations in characterizing the fertilized egg.
The Cryopreservation Agreement, prepared by the defendants, consistently referred to the
remaining pre-zygote as property of the Yorks13. The Agreement explicitly provided that in
the event of a divorce, the legal ownership of the pre-zygote must be determined in a property
settlement by a court of competent jurisdiction.14 The court seems to have had no difficulty in
finding that the defendant institution had fully recognized the plaintiffs property rights in the

8
717 F. Supp. 421 (E.D. Va. 1989)
9
York, 717 F. Supp. at 422
10
Ibid at 424
11
Ibid at 425. A bailor/bailee relationship implies the finding that the pre-zygote was property. Only property is
exchanged in a bailor/bailee relationship. "Life" would be designated by a temporary custody or guardianship
relationship.
12
ibid
13
Ibid at 424-25
14
Ibid at 426

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pre-zygote and had limited their rights as bailee to exercise dominion and control over the
prezygote. The court was aided in its result by the position of the American Fertility Societys
Ethical Statement on IVF: It is understood that the gametes and concepti are the property of the
donors. The donors therefore have the right to decide at their sole discretion the disposition of
these items, provided such disposition is within medical and ethical guidelines as outlined
herein.

Another case which may be said to imply that the frozen embryos are property is Del Zio v.
Presbyterian Hospital Medical Center 15 In this case a couple had entered into an in vitro
fertilization program. A fertilized embryo was created, but the hospital, before implanting the
fertilized embryo into the woman, destroyed it. The couple sued alleging conversion and
intentional infliction of emotional distress. Both issues went to the jury, but only the allegation of
intentional infliction of emotional distress was upheld. However, it is reasoned that "since an
embryo could not be converted unless it constituted 'property', and the definition of 'property'
would seem to be an issue of law, the court's willingness to instruct the jury on conversion
implies a finding that the embryo was 'property'." Similarly, since no criminal action was brought
alleging murder, it is doubtful that the embryos were thought to be life.

15
Andrews, Legal Status of the Embryo, 32 LoY. L.R. 357, 367-8 (1986)

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Conclusion

The subject of new reproductive technologies must soon be addressed by the legislatures.
Because the question is so emotionally charged, the legislature appears to be the proper forum.
There are basically three common avenues from which commentators choose. First, an act could
take the position that the embryos are not property but life which must be protected from
destruction. The opposite conclusion could be that the embryos are property over which parties
may dispute. The third option, or middle ground, may be that the embryos are neither life nor
property, but because they offer the potential to become life, they should be treated with respect
and afforded limited rights.

This author proposes that the middle ground is a form of avoiding the ultimate question.
Affording embryos respect does not solve disputes, but begs the question of "how much respect
should they be afforded?" Because the world presently has too many homeless and unwanted
children, a statute should not impose the burden of bringing all frozen embryos to life. This is too
much respect for potential life that ignores the realities of the world.
Secondly, because the frozen embryo has not developed an embryonic axis or any other
distinctive characteristics, there is no reason to treat this embryo as human life. A statute should
allow owners of such organisms to decide their fate. Further, if a dispute between owners is
involved, because no human life has developed, the presumption in favor of letting the organism
expire should prevail over the other gamete provider's wishes to bring the embryo to life.
Because the gamete provider who wishes to create life may always try again, either with one's
own gametes or those from donor's, new technology has afforded the gamete provider that
luxury. Because this option is possible, the gamete provider desiring to sever all genetic links to
his or her person should be entitled to such a right.
A uniform act should be promulgated and submitted to each of the separate states for adoption.
The act should go beyond the mere problems faced today and decide fundamental issues which
will provide the basis to solve tomorrow's problems. By doing this a more stable and predictable
body of law will develop, enabling the legal profession to meet the dilemmas new technology
proposes.

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The Federal District Court for the Southern District of New York, in Del Zio v. Columbia
Presbyterian Medical Center, held that the in vitro fertilization (IVF) embryo was not the
property of the couple who provided the sperm and egg. In 1973, the Del Zios were one of the
first reported couples in the United States to attempt IVF. In accordance with IVF procedure, the
Del Zios' physician removed an egg from Mrs. Del Zio, fertilized it with Mr. Del Zio's sperm,
and stored the mixture in an incubator. While the culture was housed in the incubator, Dr.
Raymond Vande Wiele, the chairperson of the pediatrics department of Columbia Presbyterian
Medical Center, learned about the attempted IVF." Because he believed the IVF process was
both unethical and immoral, Vande Wiele removed the culture from the incubator and destroyed
it without notice to the physician or the couple. As a result of the embryo destruction, the Del
Zios filed suit against Vande Wiele and Columbia Presbyterian claiming unlawful destruction of
their property and infliction of emotional distress. After a fiveweek trial and thirteen hours of
jury deliberation, the jury returned a verdict rejecting the property claim but awarding the Del
Zios damages for emotional distress. Therefore, according to the Del Zio court, the property
approach was not a satisfactory framework within which to analyze the legal status of the
embryo.

The Yorks married in 1983 and attempted to have a child the following year. Risa was unable to
get pregnant due to problems with her fallopian tubes, and in 1986 the couple began the IVF
process at the Jones Institute in Virginia. Doctors used the IVF procedure to create six
preembryos from Risa's eggs and Steven's sperm, and they transferred five of the preembryos to
Risa's uterus in 1987, placing the remaining preembryo in cryopreservation for possible later use.
Risa did not become pregnant, and the couple had moved to California during the course of IVF
treatment. In early 1988, with the single preembryo remaining in cryopreservation at the Jones
Institute, the Yorks decided to attempt pregnancy with the assistance of doctors at the Institute
for Reproductive Research at the Hospital of the Good Samaritan in Los Angeles, California.
Despite requests from both the Yorks and their California physician, doctors at the Jones
Institute refused to transfer the cryopreserved preembryo to the Yorks' new medical facility.

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Bibliography

Michelle F. Sublett Frozen Embryos: What Are They and How Should the Law Treat
Them, 38 Clev. St. L. Rev. 585 (1990).
Annotation, HOMICIDE BASED ON KILLING OF UNBORN CHILD, 40 A.L.R.3d
444, 446 (1971).
Wadlington, ARTIFICIAL CONCEPTION: THE CHALLENGE FOR FAMILY LAW,
69 VA. L.REv. 465, 466-67 (1983).
Andrews, THE LEGAL STATUS OF THE EMBRYO, 32 LoY. L.REV. 357, 368 (1986).

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