A Response to Legal Concerns Over the Use of Leftover Frozen Embryos


“We are not accustomed to thinking about engagements, marriage, having children, raising children, giving children up for adoption, or volunteering for a research project as fit subjects for binding contracts,” George Annas writes in his commentary for the Aug. 3 New England Journal of Medicine. “Nonetheless,” he continues, “in our market-driven medical care system, we have lately become obsessed with contracts, and commercial values have often overcome common sense. But advocates of binding contracts in the in vitro fertilization industry can prevail only by taking contracts out of their human context and by ignoring the complexity of human relations.” Annas refers to three state supreme court cases in which separating couples disagreed over the fate of their frozen embryos and the NIH’s position on embryonic stem cell research, calling them examples of a “Ulysses contract,” or an agreement that has a major condition relinquishing the right to change one’s mind.

Judicial Disparity in the States

In 1995, a dispute arose in Massachusetts when a married couple separated and the wife sought to use the frozen embryos created years before against her husband’s wishes. Although the couple had signed an agreement that gave the woman the right to implant their embryos in the event of separation, the Massachusetts Supreme Court upheld the opinion that courts should not enforce “agreements to enter into familial relationships (marriage or parenthood).” The justices noted, “As a matter of public policy, we conclude that forced procreation is not an area amenable to judicial enforcement,” and courts “will not enforce contracts that violate public policy.” When a similar case was presented in a Tennessee courtroom in 1992, the court would have ruled in favor of a binding contract to decide the fate of frozen embryos, yet in its absence the court decided to not enforce the embryo transfer to the wife as it refused to require the husband to become a parent against his will and required the contemporaneous consent of both parties to use the embryos for procreative or research purposes. Interestingly, a New York court ruled differently after the wife in a divorce case attempted to rescind a contract signed during marriage that stated that the embryos would be used for research purposes in the case the couple no longer needed them. After asking the court for custody of the embryos, the court ruled that their prior contract had legal merit and that the embryos were to be used for research purposes.

Federal Law Limits Use

Annas also addresses current U.S. law that prohibits federal funding for the creation of human embryos for research purposes or for any research in which a human embryo is destroyed, as well as the NIH’s decision to obey this ban and continue with privately funded research of stem cells derived from embryonic tissue. Such research is confined to specific guidelines that limit it to using stored spare or surplus embryos created in in vitro fertilization clinics, and prohibit enforcement of advance contracts of gamete donors to use surplus embryos for research. Annas concludes that these court and NIH decisions “run counter to this market trend and could signal a return to a more human-centered ethic.” He recommends that in vitro fertilization clinics inform and counsel couples about the possibility of having leftover embryos, and discredits any financial inducements to the couple for the use of their embryos, as “human embryos are not waste products, … [and] we must at least ensure that the people who created it for purposes of procreation decide its fate together at a time when the decision is likely to matter.”


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