From Fertility Clinic to Courtroom Conflict: A Critical Analysis of Pre-embryo Disposition Disputes in the U.S. and Beyond

Abstract

Assisted reproductive technology (ART), particularly in vitro fertilization (IVF), has become increasingly prevalent, driven by rising maternal ages and a significant incidence of infertility. In the United States, 2.5 percent of all births in 2022 were IVF-assisted, highlighting its critical role in family building. However, the initial optimism of IVF can obscure potential future conflicts, as couples often do not discuss the disposition of cryopreserved pre-embryos in contingencies such as death or relationship dissolution. While IVF clinic consent forms exist, their legal enforceability regarding pre-embryo disposition, especially when circumstances or interests change over time, remains a critical question. This issue was recently exemplified by a Korean actress who implanted cryopreserved embryos without her ex-husband’s consent due to an approaching storage limit, raising profound ethical questions about reproductive autonomy and parental rights in the absence of clear legal provisions. Similarly, U.S. courts have grappled with pre-embryo disposition in divorce proceedings, developing three distinct legal approaches. This article examines these U.S. judicial approaches, identifying inconsistencies even within such frameworks. The author argues for the necessity of clear, modifiable provisions regarding pre-embryo disposition to ensure legal certainty, predictable outcomes, and better respect for individuals’ reproductive autonomy and procreation rights. Such an approach is crucial to prevent instances of unwanted or forced parenthood, addressing a global challenge as demonstrated by recent international controversies, and offering a pathway toward more effective pre-embryo disposition.