Who Gets The Embryo?

Reproductive technology has advanced so rapidly that legal answers are being demanded for questions that we wouldn’t have conceived of asking a generation ago. Questions like, Who gets to decide what happens to a woman’s frozen eggs after her death? Should a wife be able to harvest sperm from her dead husband’s body in order to create a posthumously born child? What about couples who are divorcing – who gets to control what happens to frozen embryos they created and stored during their marriage? 

When it comes to these issues, the law has not quite caught up with technology. The approaches taken vary from state to state, with some jurisdictions at the progressive forefront, and others lagging behind. But, there is a distinction drawn between control over gametes (eggs and sperm) and embryos or pre-embryos.


When it comes to gametes, contract rights prevail, and the owner of the genetic material generally gets to dictate, by way of contract, what should happen to it. So, for example, a woman can use her estate plan to control what happens to her frozen eggs after she passes away. What if there’s no will, but there’s a surviving husband? Then the default rule appears to be that the surviving spouse gets to control what happens to the frozen eggs.


Embryos are a slightly different story. Florida and Louisiana are among the few states which have enacted statutes to provide for what happens to frozen embryos. The results are in stark contrast to each other. 

Florida:  Under Florida law, a couple using advanced reproductive technology is required, along with their doctor, to enter into a written agreement that spells out what is to happen to gametes or pre-embryos in the event of a future divorce, death, or other unanticipated circumstance. If there is no contract in place, then the control of gametes belongs to the person who provided the genetic material, while the couple jointly decides what happens to pre-embryos. However, if one member of the couple passes away, control goes to the surviving partner. 

Louisiana:  Louisiana takes an entirely different approach. Fertilized eggs are not considered property, and they are not controlled by contract. Instead, a fertilized egg is considered a legal person. It is illegal to destroy a fertilized egg, and any dispute concerning the fate of the fertilized egg is to be resolved using the “best interest of the fertilized ovum” standard. Note the similarity to Family Law, in which the best interest of the child is the overriding concern. 

The consensus among the remaining states seems to be that if a contract exists, the terms of that contract will dictate what happens to the embryo, both during divorce and after death. If there’s no contract, then the courts tend to side with the individual asserting the right not to procreate.

It’s important to counsel clients on the need to address these issues, in writing, before a dispute arises. 

What do you think? What should the law be in this new area?