Legal Disputes over Frozen Embryos: A Study

Abstract

We studied all American cases involving the disposition of frozen embryos. Our primary objective is to review the basis and frequency of legal claims and potential clinic liability over disputed embryos in cases of divorce or separation. A secondary goal is to detect practice trends and gain insight into causes and areas for improvement. Finally, we offer some reflections on a post-Roe future in which embryo disputes take place across states that assign disparate or uncertain legal statuses to frozen embryos.

Our data show that one-third of these ownership disputes involved no prior arrangement about what to do in the event of separation or divorce with the embryos that people created at a happier point in their relationship through assisted reproductive technologies. When the parties did make agreements with each other and clinics about embryo disposition, these contracts were rarely clear enough to determine the court’s resolution in these cases.

We recommend more robust clinical practices to inform parties, facilitate deliberation, and require signed contracts before embryo creation, freezing, and storage. We also consider implications prompted by the fall of Roe, which has recast the legal status of frozen embryos in many parts of the country, with some states treating embryos as closer to property, others closer to persons.

Document Type

Article

Year

2025

Publication Title

Pace Law Review

Volume

45

Starting Page

73

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