Oregon Law Review : Vol. 88 No. 3, p.931-962 : Of Property and Procreation: Oregon’s Place in the National Debate over Frozen Embryo Disputes
Frazier, Tracy J.
With the development of assisted reproductive technologies such as IVF, human inventiveness has opened a Pandora’s box of ethical and legal issues. Profound uncertainty exists when parties using IVF subsequently disagree about the disposition of their cryopreserved embryos. Perhaps because these technologies implicate some of the most intimate human concerns—reproduction, parenting, and marriage—both legislatures and the courts have been reluctant to speak explicitly about any resolution of the present confusion. The few courts, including Oregon’s, to address the issue of remaining embryos have considered the problem within the typical legal framework of property and contract interpretation. But such legal construction reduces the embryo to an object and ignores possible solutions that would keep many embryo disputes out of court. Oregon should look to the IVF contract for resolution, requiring parties to agree in advance to the disposition of their embryos and preventing them from coming to an agreement that no court will enforce. The legislature should take measures to ensure that wouldbe parents understand the gravity of their agreement. Mandating counseling before entering into the contract with the IVF clinic may be one such measure. Ultimately, enactment of such a statute will both create a foundation for a more uniform and consistent legal setting and ensure a more rational basis for resolving embryo disputes.