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Frozen In Time: The Uncertain Life Span of a Cryopreserved Embryo

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From self-driving cars to an iPhone screen that unlocks when you look at it, advances in technology can happen fast and often have a big impact on peoples’ lives. Not surprisingly, the law does not always keep pace—often leaving important legal questions in the wake of fastadvancing technologies. What is to be done with cryopreserved embryos upon the dissolution of
a marriage is one such important legal question where innovation in the law has become necessary to address innovation in technology.

Published in: Law
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Frozen In Time: The Uncertain Life Span of a Cryopreserved Embryo

  1. 1. 1 Frozen In Time: The Uncertain Life Span of a Cryopreserved Embryo. Monique J. Bianco I. Introduction From self-driving cars to an iPhone screen that unlocks when you look at it, advances in technology can happen fast and often have a big impact on peoples’ lives. Not surprisingly, the law does not always keep pace—often leaving important legal questions in the wake of fast- advancing technologies. What is to be done with cryopreserved embryos upon the dissolution of a marriage is one such important legal question where innovation in the law has become necessary to address innovation in technology. Since 1970, the mean age of first-time mothers has increased from 21.4 years to 26.3 years.1 Thus, people are waiting until later in life to have children. Regardless of why people choose to wait, the body’s biological clock does not miraculously stop ticking. A person’s age, along with various other factors, can create conception issues. With some help from technology, a person can now overcome this obstacle. Technological advances have created several different types of fertility treatments. A person can try fertility treatments such as “artificial insemination” or “in vitro fertilization.” “Artificial insemination” is a process in which semen is placed directly into the woman’s reproductive tract to encourage fertilization.2 “In vitro fertilization” (“IVF”) is the joining of a woman's egg and a man's sperm by means outside the body.3 Many IVF patients cryopreserve (freeze) their embryos to use at a later date to start a family. These fertility treatments create a second chance for many to start biological families. Unfortunately, IVF is a 1 National Public Radio, Average Age of First-Time Moms Keeps Climbing in the U.S., https://www.npr.org/sections/health-shots/2016/01/14/462816458/average-age-of-first-time-moms-keeps-climbing- in-the-u-s (citing Center for Disease Control, National Vital Statistics System, http://www.cdc.gov/nchs/pressroom/DB232.pdf). 2 Patton v. Vanterpool, 302 Ga. 253, 265 (2017). 3 U.S. National Library of Medicine, In vitro fertilization (IVF), https://medlineplus.gov/ency/article/007279.htm (last visited 03/05/19).
  2. 2. 2 process that is emotionally, physically, and financially draining. The average cost of an IVF cycle is around $10,000-$15,000 dollars.4 IVF becomes even more complicated when the couple decides to dissolve their marriage. During a divorce, property is equitably divided between you and your spouse. So, what happens to the frozen embryos when a couple decides to divorce? Are these embryos property subject to equitable distribution? Are they forms of life entitled to support? This article will attempt to explain the current state of the law in Georgia surrounding IVF and divorce. II. Background Between 2011-2015, the Center for Disease Control and Prevention (“CDC”) conducted a survey of Americans facing infertility issues. The CDC reported that approximately 7.3 million women ages 15-44 received fertility services during that period.5 In 2016, the CDC reported that there were 263,577 Assisted Reproductive Technology (“ART”) cycles performed.6 Of that, 65,840 cycles were started with the intent to freeze embryos for future use;7 while the other 197,737 were conducted with the intent that at least one embryo be transplanted.8 Those latter cycles resulted in 65,969 recorded live births.9 The average age of a woman undergoing ART treatments in 2016 was 36.10 Despite these substantial (and growing) numbers of Americans undergoing various ART treatments, the law governing this topic is scarce. As of 2016, there were only ten states who had 4 Society for Assisted Reproductive Technology, Frequently Asked Questions, https://www.sart.org/patients/frequently-asked-questions/ (last visited 03/08/19). 5 Center for Disease Control and Prevention, National Survey of Family Growth, Infertility Services, (2011-2015), https://www.cdc.gov/nchs/nsfg/key_statistics/i.htm#infertility (last visited 03/06/19); see also Georgia Senate Research Office, Rights Relating To Reproductive And Genetic Technology, (2007), http://www.senate.ga.gov/sro/Documents/StudyCommRpts/07ReproductiveRightsRpt.pdf (last visited 03/06/19). 6 Center for Disease Control and Prevention, 2016 Assisted Reproductive Technology, National Summary Report, (Oct. 2018), https://www.cdc.gov/art/pdf/2016-report/ART-2016-National-Summary-Report.pdf#page=15 (last visited 03/06/19). 7 Id. 8 Id. 9 Id. 10 Id.
  3. 3. 3 adopted laws governing the disposition of a frozen embryo.11 Georgia is not one of them. Under Georgia law, there is no requirement that the parties enter into any type of agreement which governs the disposition of frozen embryos in the event of a divorce. Facilities that perform ART treatments generally have the parties sign consent forms. Yet, in Georgia, these consent forms are given little weight in divorce proceedings. In 2017, the Georgia Supreme Court issued a ruling noting that children born outside of wedlock specifically through IVF were deemed to not have a “legal father,” even if conceived during the marriage.12 The rationale behind this ruling was that the Georgia statute which provides “legitimate” status to children conceived during marriage but born out of wedlock, by its express terms, applies to children conceived via artificial insemination, but not IVF.13 Again in 2017, a Georgia court ruled that, where there was no agreement between the parties, the ex-husband could lawfully be awarded the right to discard the couples preserved embryos.14 In Wilson v. Delgado, a wife argued on appeal that Georgia laws governing reproductive technology were outdated.15 The Georgia Supreme Court ultimately dismissed the appeal.16 However, numerous other courts have addressed the very same question. Courts have applied three different methods to determine the disposition of frozen embryos: a contractual approach; a balancing approach; and a contemporaneous mutual consent approach.17 Before a court can get to either of these approaches though, the court must classify the embryo. 11 Debra B. Walker & Shalyn L. Caulley, The Pre-Embryo Quandary: How to Eliminate Disputes That Commonly Arise After Couples Commence Ivf, 2016 U. ILL. L. REV. 1361, 1364 (2016). 12 Jessica Noll, Georgia Supreme Court rules IVF babies have no legal father, 11 ALIVE NBC, (Oct. 17, 2017), https://www.11alive.com/article/news/local/georgia-supreme-court-rules-ivf-babies-have-no-legal-father/85- 483981566; see Patton, 302 Ga. at 253. 13 O.C.G.A. § 19-7-21. 14 See, e.g. Gary A. Debele & Susan L. Crockin, Legal Issues Surrounding Embryos and Gametes: What Family Law Practitioners Need to Know, 31 J. AM. ACAD. MATRIM. LAW. 55, 101-02 (Sept. 24, 2018). 15 Id. at 102. 16 Id. 17 Michael T. Flannery, ‘‘Rethinking” Embryo Disposition upon Divorce, 29 J. CONTEMP. HEALTH L. & POL'Y 233 (Spring 2013).
  4. 4. 4 III. Classification of an Embryo The first step in the disposition of an embryo for many courts is determining the legal classification of the embryo. A number of states have codified the classification of embryos as “property”, as opposed to “biological human.”18 Some courts that categorize embryos as property have decided that the embryos are “special property” that can be distributed as a marital asset until the embryo is implanted.19 Other courts have held that cryopreserved embryos are considered a “biological human.”20 This classification was based on the possibility that the embryos will create life.21 Additionally, other courts have opted to not give embryos the classification of “person” or “property” at all.22 Classifying an embryo as a person, property, or of special character can drastically affect the disposition of an embryo upon divorce. For instance, states that have determined that an embryo is a “person” have created legislation protecting the embryo from being intentionally destroyed.23 On the flipside, a state classifying an embryo as property could determine that the embryo can be destroyed or donated for research purposes.24 As one can imagine, the legal classification of an embryo also opens a Pandora's Box of ethical issues. 18 See generally F.S.A. § 742.17 (“Disposition of eggs, sperm, or pre-embryos”); CAL. HEALTH & SAFETY CODE § 125315 (West 2013). 19 Davis v. Davis, 842 S.W.2d 588, 597 (Tenn. 1992) (noting that embryos were not strictly “persons” or “property” under the law but that embryos were of special character); McQueen v. Gadberry, 507 S.W.3d 127, 137-38 (Mo. App. 2016) (holding that wife was not entitled the frozen pre-embryos so that she could continue IVF process over husband's objection and that said embryos were not constitutionally considered “children” under the law and that embryos were marital property of special character); see also John Tingley, & Nicholas B. Svalina, Updated by Nancy McKenna, Marital Property Law, Case Illustrations § 59:2 (2d ed. 2018). 20 See DEBELE & CROCKIN, supra note 12, at 71. 21 Id. 22 Christina L. Preville, Collaborative Law in Pennsylvania and the Frozen Embryo Debate, 8 PITT. J. ENVTL PUB. HEALTH L. 80, 87 (2013); see also Davis v. Davis, 824 S.W.2d 588 (Tenn. 1992). 23 See DEBELE & CROCKIN, supra note 12, at 71 (citing LA. REV. STAT. ANN. § 9:126 (2008)). 24 See DEBELE & CROCKIN, supra note 12, at 70, 83-34 (citing Kass v. Kass, 91 N.Y.2d 554, 558-59 (N.Y. 1998)).
  5. 5. 5 Under Georgia law, the term “embryo” means “an individual fertilized ovum of the human species from the single-cell stage to eight-week development.”25 Pursuant to this Georgia statute, a person can relinquish their rights to the embryo and can be considered the “legal embryo custodian.”26 Another important definition in this code section is the definition of an “embryo transfer.” As discussed below, by defining an embryo transfer, the Georgia Supreme Court noted that the law concerning fertility treatments is not as out of date as we may think it is. Regardless, these definitions alone still do not make it clear under Georgia law how an embryo is classified or how it should disposed of upon divorce. Thus, in order to determine the disposition of an embryo, Georgia will need to adopt one of three possible approaches. A. The Contractual Approach When a couple has filed for divorce but has cryopreserved embryos stored, some courts will turn their attention to the laws of contract. The contractual approach essentially binds a party to their decisions when the contract was first formed, regardless if a party changes their mind later on.27 States that define an embryo as property are more likely to use to the contractual approach to determine the disposition of an embryo.28 Often times, many parties will enter into a consent agreement when they first start the IVF process. Consent agreements generally do not have much legal significance, but they can be of some importance. In recent years, courts have looked at the consent agreements signed by the parties to determine the disposition of the embryos upon divorce.29 If a consent agreement states that the embryos will be donated upon 25 O.C.G.A. § 19-8-40. 26 Id. 27 Arizona State University, School of Life Sciences, Center for Biology and Society, In re Marriage of Witten (2003), Embryo Project Encyclopedia (Jan. 01, 2014), http://embryo.asu.edu/handle/10776/6687 (last updated July 4, 2018). 28 See DEBELE & CROCKIN, supra note 12, at 83. 29 In re Marriage Rooks, 429 P.3d 579 (Colo. 2018) (holding that courts should look at an existing agreement between the parties first and then balance the parties’ respective interests in regard to cryopreserved embryos).
  6. 6. 6 divorce for example, the court will likely comply with the terms of the agreement. On the other hand, consenting to IVF does not necessarily mean that a person consents to becoming a parent. In Patton v. Vanterpool, the Georgia Supreme Court noted that a court cannot compel someone to become a parent specifically when the divorce settlement agreement states that there were no children born or expected to be born of the marriage.30 The wife in Patton sought to use the couple’s frozen embryos to undergo IVF treatments.31 She stated that the husband had given his informed consent when they started the IVF treatments.32 The wife argued that the signed consent agreement created an irrebuttable presumption of paternity as defined under O.C.G.A. § 19-7-21.33 While the husband did in fact consent to the wife undergoing IVF treatments during the course of the couples divorce, this was not legally sufficient to support the wife’s argument.34 The Court ruled that consenting to IVF treatments in fact did not create an irrebuttable presumption of paternity.35 The Court also relied on the fact that at the time the parties’ settled their divorce, the divorce decree made no mention of a child expected to be born of the marriage.36 Without such a provision, the intent of the parties’ to conceive a child through IVF was not readily apparent. Moreover, the Court was unpersuaded by the wife’s argument that Georgia law was out of date by the fact that in May 2009, the General Assembly passed the “Domestic Relations Guardian Social Services Options to Adoption Act.”37 The Act created O.C.G.A. § 19-8-40, which defines “embryo” and “embryo transfer.”38 An embryo transfer is 30 Patton, 302 Ga. at 253 (emphasis added). 31 Id. 32 Id. 33 Id.; O.C.G.A. § 19-7-21 states, “All children born within wedlock or within the usual period of gestation thereafter who have been conceived by means of artificial insemination are irrebuttably presumed legitimate if both spouses have consented in writing to the use and administration of artificial insemination.” O.C.G.A. § 19-7-21. 34 Barry B. McGough et. al., Domestic Relations, 70 MERCER L. REV. 81, 87 (2018); see also Patton at 253. 35 Patton, 302 Ga. at 253. 36 Id. 37 Id. at 257. 38 Id.
  7. 7. 7 vital to the IVF process.39 Through IVF, the egg is fertilized outside of the womb and then transplanted at a later date into the woman’s womb for gestation.40 The Court determined that the IVF embryo transfer process is the transfer process that the Act is referring too. The Court held that by including such technological advances, IVF was in essence considered by the legislature when drafting O.C.G.A. § 19-7-21.41 Based on the Courts interpretation of the Act and statute, the Court concluded that an irrebuttable presumption of paternity was not created for children born through IVF. Thus, even though the husband previously consented to IVF treatments, he could not now be forced to become a parent through IVF. Notably, Presiding Judge McFadden dissented to the holding in Patton.42 Judge McFadden wrote that O.C.G.A. § 19-7-21, the statute the Court relied on, contained a latent ambiguity.43 He wrote that such an ambiguity showed that the General Assembly did not consider technological advances like IVF.44 Judge McFadden further noted that the intent of the General Assembly is to protect children born through IVF, not discriminate against them.45 Nonetheless, it appears that by the decision reached in Patton, Georgia may be aligning itself with the contractual approach. Some states like California and Florida have taken the contractual approach on this issue as well.46 By using the contractual approach, California and Florida have determined that an embryo is classified as a property-based interest.47 However, 39 Id. 40 Id. 41 Id. at 258. 42 Id. 43 Id. at 260 (noting that because O.C.G.A. § 19-7-21 was drafted a decade before IVF was created, this showed that the statute contained a latent ambiguity that must resolved by the Court). 44 Id. 45 Id. (discussing that the latent ambiguity contained in O.C.G.A. § 19-7-21 should be analyzed under O.C.G.A. §1- 3-1(a) and that such an analysis would show that the General Assembly intended to protect children who were born through IVF under O.C.G.A. § 19-7-21). 46 PREVILLE, supra note 18, at 81; see also F.S.A. § 742.17; CAL. HEALTH & SAFETY CODE § 125315. 47 PREVILLE, supra note 18, at 81; see also Alison P. Barbiero, What to Expect Before You're Expecting: Clarifying Florida's Statute Governing Pre-Embryo Disposition Agreements and Divorce, 40 NOVA L. REV. 257, 273 (2016)
  8. 8. 8 Georgia has not expressly stated one way or the other whether they are going to follow the contractual approach. This is likely because there have been very few cases involving the issue of disposition of a frozen embryo upon divorce. Thus, it is too early to tell if Georgia will adopt the contractual approach or one of the other two. B. The Balancing Approach Determining the parties’ intent under the contractual approach can be difficult, but even more confusion is created when there is no agreement at all. This is where the balancing approach comes into play. When there is no agreement, some courts try to balance the interests of the perspective parties to procreate. In 2012, a Pennsylvania appellate court determined that where the mother has no other option but IVF to have biological children, the mother could undergo IVF despite the father’s objection.48 The Court in Pennsylvania came to this decision by considering the fact that the mother delayed receiving chemotherapy so she could have a better chance at conceiving a biological child.49 Conversely, in 2016 the Missouri Court of Appeals used similar factors as the court in Pennsylvania, but came to a completely different conclusion.50 One of the first factors the Missouri court considered was the classification of the embryos. The Missouri Court determined that the embryos were to be considered children.51 Despite this finding, the Court then noted that the potential life of an embryo did not supersede the parties’ privacy rights in making intimate decisions, such as becoming a parent.52 From there, (noting that the Florida statue does not it make clear whether consent agreements are binding and further, that the parties shall jointly share rights in the embryo where there is no written agreement). 48 Reber v. Reiss, 42 A.3d 1131 (Pa. Super. Ct. 2012); see also Szafranski v. Dunston, 34 N.E.3d 1132 (Ill. App. Ct. 2015) (holding that the ex-girlfriend could use preserved embryos upon finding that her interest was greater than ex- boyfriend's interest). 49 Reber, 42 A.3d at 1132-33 (noting that the wife’s doctors advised her that her chances of conceiving a child after she underwent chemotherapy would be highly unlikely). 50 McQueen, 507 S.W.3d at 146. 51 Id. at 145-48 (noting that “life begins at conception/fertilization, constitutionally apply to frozen pre-embryos and whether frozen pre-embryos should be considered “children” under Missouri's dissolution statutes”). 52 Id.
  9. 9. 9 the Court found that the mother would not be prejudiced by not being able to use the frozen embryos to have biological children where she wanted to undergo the IVF treatment after the couple separated.53 Thus, the mother was not permitted to use the preserved embryos to undergo IVF treatments and the embryos were awarded to the parties jointly.54 Recently, in 2018, the Colorado Supreme Court identified six factors for trial courts when determining the disposition of embryos upon divorce.55 These six factors included: (1) the intended use of the embryo; (2) the demonstrated physical ability or inability to conceive children by biological means; (3) the original reason for pursuing IVF; (4) the hardship of the person seeking to avoid becoming a parent, including emotion, physical, and financial reasons; (5) any bad faith shown by either party or an attempt by one of the parties to use the embryo as leverage in the divorce; and (6) any other factor deemed of importance by the court.56 Of these six factors, factors two and three created an in-depth discussion by the court.57 Although, it appears that no one factor is outcome determinative. Case law shows that despite the fascinating technological advances, the law is desperately trying to catch-up. Specifically, Georgia law is desperately trying to catch-up. Georgia could easily decide to follow the balancing approach and follow the six factors set forth in Colorado. On the contrary, Georgia could create a set of factors unique to Georgia. Once again, we are left wondering where Georgia falls on this topic. C. The Contemporaneous Mutual Consent Approach Finally, there is the contemporaneous mutual consent approach. The contemporaneous mutual consent approach allows for a party to change his or her mind regarding the disposition of 53 Id. at 146. 54 Id. 55 Rooks, 429 P.3d at 581. 56 Id. 57 Id.
  10. 10. 10 the embryo up until the embryo is actually transferred or destroyed.58 Under this approach, one party cannot destroy, donate, or use the embryo without the other parties’ consent.59 Accordingly, where the parties cannot agree to the disposition of a frozen embryo upon divorce, at least one embryo must remain frozen to ensure the status quo of the parties’ interest remains.60 The contemporaneous mutual consent approach may be an approach that Georgia considers to follow. This seems unlikely though. Today, Iowa appears to be one of the only states to expressly adopt the contemporaneous mutual consent approach.61 Accordingly, because so few states have adopted this approach, it is unlikely that Georgia will adopt it either. IV. Conclusion Georgia must decide how to treat cryopreserved embryos in a divorce case. Georgia may look to decisions reached by other jurisdictions to help in their determination, or Georgia may simply create their own standard. Specifically, Georgia will need to determine the classification given to an embryo. Georgia may decide that an embryo is a person, property, or decide to not give embryos a classification at all. Upon classification, Georgia will then need to determine guidelines to follow for the disposition of embryos. Today, there is still much uncertainty surrounding the disposition of frozen embryos upon divorce. However, given the numbers of people now receiving this treatment, and the inevitability of divorce, Georgia needs to set a standard concerning the disposition of frozen embryos soon. 58 Arizona State University, supra note 18. 59 WALKER & CAULLEY, supra note 3, at 1365. 60 Id. 61 Id.

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