Dealing with cryopreserved embryos upon divorce: a contractual approach aimed at preserving party expectations

The development of assisted reproductive technologies, including cryopreservation, or freezing, of embryos created through in vitro fertilization, has given rise to complex legal questions. Because cryopreservation permits indefinite storage of embryos, if couples fail to specify disposition directions, they may disagree regarding embryo treatment upon the occurrence of contingencies such as divorce. Few courts have resolved such disputes, and those that have appear to uphold the rights of the party seeking to prevent implantation in the absence of a written agreement specifying otherwise. In this Comment, Sara Petersen proposes that courts should draw upon contract law principles in determining whether the parties to such conflicts actually reached agreements regarding embryo disposition in the event of divorce. After analyzing existing precedent, the author assesses proposed approaches for deciding which party's interests should prevail and concludes that these methods are inherently ineffective. She then argues that, in an effort to preserve party expectations and to provide fair results, courts instead should examine whether the parties executed binding contracts or achieved mutual assent. Furthermore, she suggests that couples undergoing cryopreservation will be more likely to contemplate and to provide for various outcomes if they know that courts will look at evidence of their conversations and thought processes prior to cryopreserving their excess embryos.