Disputing over embryos: of contracts and consents.

Abstract

Infertile couples seeking assistance in reproduction frequently cryopreserve embryos for future implantation. When these couples divorce, one spouse may seek custody of the embryos for implantation, while the other seeks their destruction. To date, courts and most commentators have presumed that prior agreements regarding disposition of frozen embryos in the event of divorce should be enforced. The presumption holds true, even where such agreements are embedded in informed consent documents provided by fertility clinics as a precursor to obtaining treatment, rather than in contracts entered into by the couple for the express purpose of determining embryo disposition. This article argues that dispositional agreements should not be tucked into informed consent documents, considered as an adjunct to the main event of obtaining treatment. Drawing on the literature of informed consent, both generally and in the infertility context, as well as unconscionability doctrine, this article argues that only embryo disposition agreements that have been taken out of informed consent documents and located in a separate agreement deserve judicial endorsement.