Disputes Over Frozen Embryos in Family Law Cases – A Defense of Counsel or Contemporaneous Mutual Consent

Disputes about what to do with unused, cryopreserved, pre‐implantation, pre‐embryos (“frozen embryos”) in family law cases have been making headlines for nearly 30 years. At least 15 cases have been decided by courts of appeal across the U.S., and the result of these decisions is uncertainty. Cases have been decided primarily based on three different approaches: the contract approach; the balancing of interests approach; and the contemporaneous mutual consent approach. There is great reluctance to decide any case in a manner that will compel parenthood against a person's wishes. The article proposes that we adopt the approach of counsel or contemporaneous mutual consent.