A divorcing couple in Alabama, a widow in Arizona, an estranged pair in Connecticut — each holding the same question: who decides what happens to embryos created together but no longer wanted by both partners? American courts have been answering for thirty years, and the answers don’t agree.
The legal infrastructure was built for a world in which reproduction required two consenting adults in the same room. It wasn’t built for tanks of liquid nitrogen.
The three competing legal frameworks
Three doctrines have emerged, none dominant. The contractual approach — favored in New York and Texas — enforces whatever the couple signed at the clinic, even years later when circumstances have changed. The contemporaneous mutual consent approach, used in some Iowa and Massachusetts rulings, requires both parties to agree at the moment of disposition, effectively giving each a veto.
The balancing approach asks courts to weigh interests case by case: the right to procreate against the right not to procreate, a partner’s only chance at biological parenthood against the other’s autonomy. Tennessee’s 1992 Davis v. Davis ruling pioneered this, and it remains influential. The result is that identical facts can produce opposite outcomes depending on which state the dispute lands in.
Alabama threw a grenade
In February 2024, the Alabama Supreme Court ruled that frozen embryos are “extrauterine children” under the state’s wrongful death statute. Three IVF clinics paused services within days, and the legislature scrambled to pass shielding legislation. The ruling exposed how thin the legal consensus actually is — once a court takes embryonic personhood seriously, the entire IVF industry becomes legally radioactive.
It also previewed what post-Dobbs reproductive jurisprudence may look like. If embryos are persons, then disposing of unused ones is something other than property abandonment, and the contracts couples sign at clinics may be unenforceable on public policy grounds. No state has fully worked through these implications.
Contracts written years ago can’t anticipate divorce
The forms couples sign at fertility clinics typically ask what should happen to embryos in the event of death, divorce, or disagreement. Most people sign them quickly, focused on the goal of having a child, not the dissolution of a marriage that hasn’t happened yet. Courts have started questioning whether such consent is meaningful.
A 2018 Arizona case enforced a contract that gave embryos to the partner most likely to use them — over the objection of the other partner, who no longer wanted to be a biological parent. The legislature changed the law a year later. Other states are watching, but few have moved.
The bottom line
Frozen embryo disputes are a stress test that family law is failing. The technology has outpaced the doctrine, the doctrine varies wildly by state, and the political environment is making the gaps deeper rather than closing them. Anyone undergoing IVF should treat the clinic’s disposition forms as if they were a will — because in some jurisdictions, that’s effectively what they are. And anyone hoping for a coherent national framework should plan to wait a long time.
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